No Significant Risk Level Set for Styrene

May 15, 2017

On May 4, California’s Office of Administrative Law approved an amendment of Title 27, California Code of Regulations, section 25705, No Significant Risk Level (NSRL) for the chemical styrene. This regulation establishes a No Significant Risk Level of 27 micrograms per day for styrene for purposes of Proposition 65. The regulation will be effective on July 1, 2017.

Two Employers Fined for Fatal Drainage Shaft Accident

Cal/OSHA has cited two companies $352,570 for multiple workplace safety and health violations, including ten serious and three willful category violations, following an incident in which a worker lowered into a 50-foot drainage shaft fell to his death. Neither D&D Construction Specialties, Inc., nor Tyler Development, Inc. followed permit required confined space procedures to work in confined spaces. Cal/OSHA in 2012 cited D&D Construction, Inc., for violating similar safety orders at a different construction site.

General contractor Tyler Development was constructing a single-family residence in the Bel Air area and hired subcontractor D&D Construction to install and service reinforced concrete posts known as caissons1 on the property. On October 21, 2016, a D&D Construction worker entered the drainage shaft, which was 4.5-feet in diameter and lined with concrete, to clean out mud and debris. He stood inside a bucket attached to a mini crawler crane with no personal fall protection. After descending 10 feet into the shaft, the worker lost consciousness due to the oxygen deficient atmosphere, fell approximately 40 feet and drowned in one foot of water.

“Cal/OSHA launched a confined space educational program to bring attention to the dangers and preventable deaths that occur in confined spaces,” said Cal/OSHA Chief Juliann Sum. “The program helps employers identify hazards and create effective safety plans that include air monitoring, rescue procedures and training before work begins.”

Cal/OSHA cited D&D Construction $337,700 for 13 violations, including two willful serious accident-related, one willful serious, one serious accident-related, six serious, and three general in nature. The accident-related violations were cited for the company’s failure to:

Ensure safe entry into the confined space
Have an effective method to rescue the worker in the confined space in an emergency
Test the environment to determine if additional protective equipment, such as a respirator or oxygen tank, were required to work safely in the shaft.
Tyler was cited $14,870 for five violations, three of them classified as serious violations, for the employer’s failure to:
Evaluate the worksite for possible permit-required confined spaces
Ensure that the subcontractor meets all requirements to comply with a permit space program
Protect workers from the hazard of impalement by guarding all exposed reinforced steel ends that extend up to six feet above the work surface with protective covers

Confined spaces are defined as large enough for workers to enter, but have limited openings for exit and entry, with a potential for hazards related to the atmosphere and space. They are found in multiple industries, and include water and sewer pipes, boilers, silos, kilns, vaults, tunnels, and pumping stations.

In 2011, there were seven confined space fatalities in California. In two of the incidents, rescue was attempted by co-workers without proper evacuation training, resulting in the death of one worker and serious injuries to two workers. In response, Cal/OSHA launched a confined space emphasis program in 2012 to raise awareness of these hazards and ensure employers follow proper safeguards. This safety program includes training in identifying hazards, creating a safety plan and rescue procedures.

A willful violation is issued where evidence shows that the employer committed an intentional and knowing violation—as distinguished from inadvertent, accidental or ordinarily negligent—and the employer is conscious of the fact that what they are doing constitutes a violation, or is aware that a hazardous condition exists and no reasonable effort was made to eliminate the hazard. A serious violation is cited when there is a realistic possibility that death or serious harm could result from the actual hazardous condition.

Court Finds Railroad Company Violated Maine Employee's Whistleblower Rights

A federal appeals court has affirmed that Pan Am Railways, Inc., must pay $260,000 in punitive and compensatory damages to—and take corrective action on behalf of—an employee who was subjected to retaliation for filing a Federal Railroad Safety Act whistleblower complaint.

OSHA investigated the complaint, filed in 2011, against the North Billerica-based commercial railroad and found the railroad retaliated against the employee, who works in a rail yard in Waterville, Maine, when it charged him with dishonesty in connection with his FRSA complaint. The employee had tried to report an injury.

The department ordered the railroad to take corrective actions and pay the affected employee $10,000 in compensatory damages and $40,000 in punitive damages. Pan Am Railways appealed, and in 2014, an administrative law judge upheld the agency's finding of retaliation and increased the amount of punitive damages to $250,000. The railroad again appealed, to the department's Administrative Review Board, which affirmed the judge's order. It then appealed to the U.S. Court of Appeals for the First Circuit, which denied the railroad's petition on April 21, 2017.

"This case is a strong reminder that our whistleblower laws prohibit reprisals against employees who file whistleblower complaints, report workplace injuries and illnesses, or raise awareness of hazardous safety or security conditions," said Galen Blanton, OSHA's New England regional administrator.

"A safe and healthy workplace is a goal we should all aspire to achieve. Discriminatory actions by employers, including but not limited to retaliation, can freeze employees into silence. Hazardous conditions can go unreported as a result, and lead to avoidable human and financial costs," said Michael Felsen, the department's regional solicitor of labor for New England.

OSHA enforces the whistleblower provisions of the FRSA and 21 other statutes protecting employees who report violations of various airline, commercial motor carrier, consumer product, environmental, financial reform, food safety, health care reform, nuclear, pipeline, worker safety, public transportation agency, railroad, maritime, and securities laws.

Employers are prohibited from retaliating against employees who raise various protected concerns or provide protected information to the employer or to the government. Employees who believe that they have been retaliated against for engaging in protected conduct may file a complaint with the Secretary of Labor to request an investigation by OSHA's Whistleblower Protection Program.

Maximum Allowable Dose Levels Set for Several Pesticides

On May 3, 2017, California’s Office of Administrative Law approved an amendment to Title 27, California Code of Regulations, section 25805, Maximum Allowable Dose Levels (MADLs) to add levels for oral exposure to atrazine, propazine, simazine, and their chlorometabolites 2,4 –diamino-6-chloro-s-triazine, des-ethyl atrazine, and des-isopropyl atrazine. The regulation will be effective on July 1, 2017. This rule established an oral MADL of 100 micrograms per day for each of these chemicals for purposes of Proposition 65.