New Rule Sets Safety Requirements for Rail Workers

A final rule published in the Federal Register by the Federal Transit Administration sets new requirements for rail transit agencies to protect rail workers. The rule gives agencies one year to create a roadway worker protection program that focuses on employees who work on or around rail lines. The program must be approved by a state safety oversight agency, or SSOA, and establish minimum elements such as job safety briefings and lone-worker protection. Employers will also be required to document their program in safety manuals, update the manuals every two years, conduct a safety risk assessment, and establish training for all transit workers responsible for on-track safety. Other elements of the rule include required reporting of near misses.

 

According to an FTA press release announcing the rule, between Jan. 1, 2008, and June 30, 2024, 29 rail workers were killed and 144 seriously injured while performing track work. FTA estimates that the rule will prevent an average of 1.2 fatalities and 2.4 injuries each year.

 

For more information, review the rule in the Federal Register and read FTA’s press release.

 

A U.S. Department of Labor investigation found two contractors could have prevented a crane collapse at a Fort Lauderdale residential construction site in April 2024, which caused a 27-year-old rigger to suffer fatal injuries after falling approximately 30 stories.

 

Investigators with OSHA learned that two workers employed by Phoenix Rigging & Erecting, LLC, were installing a section on a tower crane to increase its height when a support cable failed and the platform on which they stood became displaced. One worker, who was wearing the required fall protection and tied off, was rescued. Another worker, whose lanyard was not connected to an anchor point was fatally injured.

 

OSHA cited Phoenix Rigging & Erecting in Mableton, Georgia, for three serious violations for failing to do the following:

 

The agency also cited a Canonsburg, Pennsylvania, crane rental company, Maxim Crane Works LP, for two serious violations for failing to do the following:

 

“Neglecting workplace safety requirements can be a matter of life or death,” said OSHA Area Director Condell Eastmond in Fort Lauderdale, Florida. “If these companies had made safety a priority, a young man’s family, friends, and co-workers wouldn’t be facing this preventable loss. Construction employers are responsible for ensuring that workers use fall protection in hazardous situations, and we will hold all employers accountable for failing to provide safe working conditions.”

 

OSHA cited the construction contractors for five serious violations and proposed $61,299 in penalties, the maximum amount that OSHA can legally recommend.

 

The Bureau of Labor Statistics reports that 1,056 construction workers were fatally injured on the job in 2022, with 423 of those fatalities related to falls from elevation, slips or trips.

 

 

The EPA announced a settlement of its administrative penalty and compliance case against Shield Packaging Company in Dudley, Mass. for alleged violations of the chemical accident prevention and preparedness provisions of Clean Air Act.

 

The company, an aerosol products manufacturing operation, was issued an EPA compliance order in November of 2023 to correct alleged violations of the Clean Air Act's Risk Management Program and General Duty Clause, which were identified after EPA's August 2021 inspection. The company has been complying with the compliance order, and under the recent settlement, will pay a penalty of $219,500.

 

"Workers and those living near businesses have a right to be free of worry about chemical accidents. Facilities storing and handling extremely hazardous substances must remain compliant with the laws and requirements to keep workers and neighbors safe," said EPA New England Regional Administrator David W. Cash. "EPA will continue to enforce regulations that protect communities and prevent harmful accidents."

 

 

On August 4, 2021, representatives from EPA Region 1 conducted an announced inspection at the facility to assess compliance with the requirements of Clean Air Act (CAA) Section 112(r), including the Risk Management Regulations (RMP) and other federal environmental laws and regulations.

 

Shield Packaging Co. provided various information and documents to EPA both during and after the inspection. EPA issued an administrative notice of violation and compliance order to the company in November of 2023 for many, but not all, of the following violations that EPA subsequently included in the penalty: 

 

CAA 112(r) Risk Management Regulations and Process Hazard Analysis Violation (40 C.F.R. § 68.67): Shield Packaging Co. violated CAA Section 112(r) RMP requirements by failing to timely update its Process Hazard Analysis (PHA) for the facility's processes that involve flammable chemical propellants. PHAs are important to help a facility analyze potential causes and effects of a chemical release and help prevent them. RMP regulations require PHAs to be updated at least every five years.  

 

CAA 112(r) RMP Compliance Audit Violation (40 C.F.R. § 68.79): Shield Packaging Company violated CAA Section 112(r) RMP requirements by failing to timely audit the company's compliance with the RMP requirements. The company is required to evaluate its compliance with these requirements at least every three years and produce an audit report to verify that procedures and practices developed under RMP regulations are adequate and are being followed at the Facility. The report must also respond to the identified deficiencies at the Facility and document that they have been corrected.  

 

CAA 112(r) RMP Mechanical Integrity Procedures Violation (40 C.F.R. § 68.73): Shield Packaging Company violated CAA Section 112(r) RMP requirements by failing to establish mechanical integrity procedures for its tanks that store chemical propellants. The company is required to establish and implement written procedures to maintain the ongoing integrity of its process equipment. The company's 2018 Compliance Audit Checklist revealed that the Facility had no written plan to maintain the mechanical integrity of its process equipment.

 

CAA Section 112(r) RMP Training Procedures Violation (40 C.F.R. § 68.71): Shield Packaging Company violated CAA Section 112(r) RMP requirements by failing to train the employees involved in certain operating processes and document the training.

 

CAA Section 112(r) RMP Emergency Planning and Response Action Plan Violation (40 C.F.R. §§ 68.90 and 68.95): Shield Packaging Company violated CAA Section 112(r) RMP requirements by failing to establish an adequate emergency planning and response action program which is important for a facility to have in case of an accidental release of any flammable gases.

 

CAA Section 112(r) RMP Operating Procedures Violation (40 C.F.R. § 68.69): Shield Packaging Company violated CAA Section 112(r) RMP requirements by failing to annually recertify its written operating procedures. The operating procedures also lacked essential precautions to prevent exposure to chemicals, such as a requirement to use personal protective equipment or including gas detection.

 

A copy of the Final Consent Agreement and Final order is available upon request.

 

 

The EPA announced it has issued an Administrative Order on Consent to Mountain Top Public Service District (MTPSD) in West Virginia for several Clean Water Act violations at its three domestic wastewater treatment systems in Bayard, WV, Gormania, WV, and Elk Garden, WV.

 

EPA noted several violations during a December 7, 2022, inspection, including exceedances to the discharge limits allowed by MTPSD’s permit. While excess discharge to the North Branch of the Potomac River are violations, there was no imminent danger to the residents or the water. Additional issues at the plants included other operations, maintenance, and reporting data problems that will be addressed by corrective actions. MTPSD is cooperating with EPA to achieve compliance.

 

The EPA is working in partnership with the West Virginia Department of Environmental  Protection to ensure MTPSD provides a corrective action plan within the 120-day deadline required by the Order.

 

 

An administrative law judge has ordered a Rochester commercial roofing company to pay $16,782 in penalties for two serious fall protection and ladder safety violations, after an investigation and litigation by the U.S. Department of Labor.

 

The company, Elmer W. Davis Inc., had contested citations issued by OSHA that alleged safety violations including that the employer failed to protect an employee from a 40-foot fall hazard as they stood near the edge of a roof to guide a crane's operation. OSHA also alleged the company allowed workers to use an unsafe ladder.

 

In April 2022, OSHA found that workers performing roofing work on the Village of Newark's municipal building were not using the necessary fall protection.

 

The post-trial decision affirmed two of the citations, including the allegation that the employer failed to protect an employee from a 40-foot fall while directing a crane near the edge of a four-story building's roof, without using fall protection. One citation related to fall protection methods on a low slope roof was vacated.

 

Following a trial before the Occupational Safety and Health Review Commission, the judge announced on Sept. 19, 2024, that the department's Office of the Solicitor proved Elmer W. Davis had knowledge of the fall protection violation because the violation was readily visible to the company's foreman and the company had failed to implement its safety program adequately. The judge rejected the company's contention that its defense of unpreventable employee misconduct should be automatically credited based on an unrelated prior case involving the same defense. Read the decision, and the errata order.

 

Additionally, the judge rejected the company's defense based on the fourth amendment's protection against unreasonable searches and seizures, finding that Elmer W. Davis Inc. could have no reasonable expectation of privacy on the rooftop of a construction site that it did not own, and that the OSHA inspector acted reasonably during the inspection.

 

"As the U.S. Department of Labor's vigorous litigation showed, and the judge appropriately held, Elmer W. Davis Inc. failed to protect employees from fall hazards and cannot claim permanent and complete freedom to commit violations," said Regional Solicitor of Labor Jeffrey S. Rogoff in New York. "The department takes protecting employees from fall hazards very seriously."

 

The decision becomes a final Occupational Safety and Health Review Commission order on Oct. 30, 2024, unless the OSHRC directs review of the decision before that date. The employer filed an appeal petition on Oct. 18.

 

"Falls from roofs and other elevations are the leading cause of death in the construction industry, needlessly killing hundreds of workers each year and leaving many more with permanent and often disabling injuries," said OSHA Area Director Jeffrey Prebish in Syracuse, New York. "Elmer W. Davis Inc. violated mandatory federal safety regulations and put workers in danger."

 

OSHA's Area Office in Syracuse conducted the inspection. Trial attorney Julie Pittman and senior trial attorney David Rutenberg of the regional Office of the Solicitor in New York litigated the case.

 

 

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