OSHA Updates Whistleblower Manual

August 15, 2022
OSHA recently revised the agency’s Whistleblower Investigations Manual. The updated manual supersedes the January 2016 version and is the first complete overhaul since 2011.
The investigations manual outlines procedures, legal concepts and other information related to handling retaliation complaints under the various whistleblower statutes that OSHA enforces.
Key changes in the manual include:
  • Incorporating past policy memoranda and procedures piloted by OSHA field offices
  • Clarifying and streamlining procedures that lacked sufficient guidance or were unclear in the 2016 version
  • Statute-specific chapters were removed and converted into statute-specific desk aids
  • Restructuring the manual such that Chapter 2 now collects and explains the legal concepts and principles that guide whistleblower investigations. In previous versions, these concepts were introduced throughout the manual
"We are working to improve our whistleblower program to help ensure workers have a voice on the job free of retaliation," said Assistant Secretary of Labor for Occupational Safety and Health Doug Parker.
OSHA enforces the whistleblower provisions of 25 statutes protecting employees who report violations of various airline, commercial motor carrier, consumer product, environmental, financial reform, food safety, motor vehicle safety, healthcare reform, nuclear, pipeline, public transportation agency, railroad, maritime, and securities laws. For more information on whistleblower protections, visit OSHA's Whistleblower Protection Programs webpage.
Proposed Rule to Add Diisononyl Phthalate Category to Toxic Chemical List Issued
On 5 September 2000, in response to a petition filed under the Emergency Planning and Community Right-to-Know Act (EPCRA), EPA issued a proposed rule to add a diisononyl phthalate (DINP) category to the list of toxic chemicals subject to the reporting requirements under EPCRA and the Pollution Prevention Act (PPA). EPA proposed to add this chemical category to the EPCRA toxic chemical list based on its preliminary conclusion that this category met the EPCRA toxicity criterion. EPA has updated its hazard assessment for DINP and is proposing to add DINP as a category defined to include branched alkyl di-esters of 1,2 benzenedicarboxylic acid in which alkyl ester moieties contain a total of nine carbons. Comments must be received on or before 7 October 2022. POC is Daniel R. Bushman, Data Gathering and Analysis Division (7406M), Office of Pollution Prevention and Toxics, Environmental Protection Agency, 1200 Pennsylvania Ave. NW, Washington, DC 20460-0001; tel: (202) 566-0743; email: bushman.daniel@epa.gov. (Federal Register 8 August 2022 [Proposed Rule] Pages 48128-48140).
California Company to Pay $68K Penalty for Violations of the Toxic Substances Control Act
The EPA recently announced a settlement with Lighting Resources, LLC, a generator and commercial storer of polychlorinated biphenyls (PCBs), for violations of the Toxic Substances Control Act (TSCA) at its E. Victory Street facility in Phoenix, Arizona. The company will pay $68,290 in civil penalties.
Based on a February 2020 inspection at the facility, EPA found that Lighting Resources had failed to comply with marking, dating, notification, and manifesting requirements for PCB waste. EPA also found that the company used areas in the facility that were contaminated with PCBs that it had not decontaminated prior to use. Finally, EPA found that Lighting Resources accepted unauthorized PCB liquid waste and stored excess PCB waste.
"Even though PCBs are no longer manufactured in this country, EPA is focused on ensuring the proper handling, storage and disposal of PCBs that are still in use," said EPA Pacific Southwest Regional Administrator Martha Guzman. "This focus is critical to reducing the likelihood of further contamination of our environment from a toxic and persistent chemical."
PCBs are man-made organic chemicals that were used extensively in paint, plastics, and electrical equipment before EPA banned its production in 1978. More than 1.5 billion pounds of PCBs were manufactured in the United States before the ban. Acute PCB exposure can adversely affect the nervous, immune, and endocrine systems as well as liver function. Concerns about human health and the extensive presence and lengthy persistence of PCBs in the environment led Congress to enact TSCA in 1976.
For more information on PCBs, including safe handling and disposal requirements visit EPA’s Polychlorinated Biphenyls website.
For more information on TSCA, visit EPA’s Summary of the Toxic Substances Control Act website.
EPA, IDEM Reach Settlement with Metalworking Lubricants Company on Clean Air Act Violations
The EPA and Indiana Department of Environmental Management recently announced a settlement with Metalworking Lubricants Co. for alleged violations of the Clean Air Act at its used oil processing facility in Indianapolis. Under the terms of the settlement, the company will pay a penalty of $155,000 to the United States and $155,000 to the state of Indiana.
“This action demonstrates EPA’s commitment to protect public health against hazardous air pollution,” said Michael Harris, director of the Enforcement and Compliance Assurance Division at EPA Region 5. “Companies that fail to take proper precautions or keep thorough records will be held accountable by EPA and our state partners.”
“This is good news for central Indiana, and the improvements required by this consent decree will result in cleaner air for the community,” said Indiana Department of Environmental Management Commissioner Brian Rockensuess. “Through our partnership with EPA, we were able to resolve these outstanding Clean Air Act violations.”
In the complaint, EPA and IDEM alleged that Metalworking Lubricants emitted more than 25 tons of hazardous air pollutants per year, including naphthalene, ethylbenzene, xylene, phenol, and toluene, in violation of its existing permit. The company also allegedly failed to operate its scrubber at specific times when its oil-processing tanks were in operation; failed to respond when the scrubber malfunctioned; failed to keep required records; and underestimated the amount of hazardous air pollutants in incoming oil, which affected its emissions. The company also allegedly failed to apply for a major source operating permit.
In addition to the penalty, Metalworking Lubricants will install a carbon adsorption system to control total organic compound and hazardous air pollutant emissions. The company will connect all oil and wastewater processing tanks to the system and scrubber. The system must recover more than 95% of the total organic compound emissions and emit no more than eight pounds per hour of sulfur dioxide. The company will also have to meet certain testing, monitoring and recordkeeping requirements and comply with a revised federally enforceable state operating permit to keep its emissions less than 25 tons per year.
The Indianapolis facility is located near a community with environmental justice concerns. EPA is committed to addressing the impacts to human health from pollution and other stressors, such as poverty and housing conditions. EPA works toward the goal of environmental justice, which is the fair treatment and meaningful involvement of all people regardless of race, color, national origin, or income, with respect to the development, implementation, and enforcement of environmental laws, regulations, and policies.
The settlement terms are included in the proposed consent decree. The consent decree is subject to a 30-day public comment period and final court approval. The government’s complaint and the consent decree are on the Department of Justice website.
Process Safety Failures Led to Fatal 2017 Explosion
A final report released by the U.S. Chemical Safety and Hazard Investigation Board faults a St. Louis employer’s deficient process safety management for a 2017 explosion that took the lives of four people. According to CSB, failures in the Loy-Lange box company’s policies, procedures, and operations, as well as an inadequate repair, led to the explosion of a pressure vessel on April 3, 2017. A worker died in the explosion, and the pressure vessel, which weighed 2,000 pounds, was launched into the air and through the roof of a laundromat 500 feet away, killing three members of the public.
CSB found that corrosion had thinned the metal of the pressure vessel over a period of years and that Loy-Lange’s startup practices likely contributed to the corrosion by introducing oxygenated water into the equipment. The CSB report states that Loy-Lange was aware of the corrosion as early as 2004 but did not institute a program for regularly inspecting the pressure vessel as called for by industry guidance documents.
In addition, the city of St. Louis, which has regulatory authority over pressure vessels operated within city limits, failed to inspect the equipment at Loy-Lange due to limited staffing and resources, according to the report.
Loy-Lange attempted to fix the pressure vessel in 2012, but the resulting repair removed only a portion of the corroded metal, and a subsequent inspection did not detect the problem. CSB says that the original steel left in place at the time is what ultimately failed five years later, causing the fatal explosion. A few days before the explosion, employees discovered that the pressure vessel was leaking, but a local welder contacted by Loy-Lange was unable to visit the facility at that time, and the company continued to operate the equipment as normal.
“Loy-Lange [. . .] did not employ sound process safety management principles in addressing the risks associated with corrosion in its steam process,” the report reads. “It is essential that facilities with hazardous processes have an effective process safety management system to help ensure major incidents such as the Loy- Lange incident are prevented.”
More information is available on the CSB website.
Violation Notices Issued to Michigan Company for Chemical Releases
The Wixom company responsible for a chemical release that threatened the Huron River system was served with multiple violation notices late Tuesday from the Michigan Department of Environment, Great Lakes, and Energy (EGLE).
EGLE’s Water Resources Division (WRD) issued violations to Tribar Manufacturing and initiated accelerated enforcement related to issues involving the unauthorized release of a plating solution containing hexavalent chromium the weekend of July 29. EGLE’s Air Quality Division issued separate notices related to a July 21 inspection – prior to and not directly related to the release.
The WRD cited Tribar for violations including:
  • Failing to immediately notify EGLE immediately after discovering the discharge as required under the law and their industrial user discharge permit
  • Sending an unauthorized discharge of pollutants to the wastewater treatment facility that resulted in interference to the treatment process, violating pretreatment rules in the Michigan Natural Resources and Environmental Protection Act (NREPA)
  • Failure to maintain a properly updated Pollution Incident Prevention Plan (PIPP) and failing to certify compliance with NREPA rules regarding spillage of oil and polluting materials
EGLE’s WRD gave the company until Aug. 20 to respond in writing to the violation notices, including responses to a series of questions designed to determine exactly what happened, and when, that led up to the release. Repeated requests by EGLE investigators for this critical information have not been adequately addressed by Tribar.
Due to the seriousness of the violations, EGLE has initiated accelerated enforcement, which will initiate an administrative consent order process and seek full cost recovery from Tribar.
The AQD violations include:
The AQD notices include multiple instances of records not being kept as required in the company’s air permits. Because records were not kept as required, the company could not show compliance with several pollutants, including volatile organic compounds and hazardous air pollutants, how much of certain chemicals were used in certain time frames, and the information to show control equipment on the coating line was operating properly. The notices also include violations for not properly operating equipment to minimize and control emissions of nickel and total chrome.
Vessel Operator and Chief Engineer Convicted for Oily Bilge Water Discharge Offense
New Trade Ship Management S.A. (New Trade), a vessel operating company, and vessel Chief Engineer Dennis Plasabas pleaded guilty recently in San Diego, California, for maintaining false and incomplete records relating to the discharge of oily bilge water from the bulk carrier vessel Longshore.
New Trade and Plasabas admitted that oily bilge water was illegally dumped from the Longshore directly into the ocean without being properly processed through required pollution prevention equipment. Oily bilge water typically contains oil contamination from the operation and cleaning of machinery on the vessel. The defendants also admitted that these illegal discharges were not recorded in the vessel’s oil record book as required by law. Specifically, on two separate occasions between October and December 2021, Chief Engineer Plasabas, who was employed by New Trade, ordered lower-ranking crew members to use a portable pneumatic pump and hose to bypass pollution prevention equipment by transferring oily bilge water from the vessel’s bilge holding tank to the vessel’s sewage tank, from where it was discharged directly into the ocean. Plasabas then failed to record these improper transfers and overboard discharges in the vessel’s oil record book. Additionally, in order to create a false and misleading electronic record as if the pollution prevention equipment had been properly used, Plasabas directed lower-ranking crew members to pump clean sea water into the vessel’s bilge holding tank in the same quantity as the amount of oily bilge water that he had ordered transferred to the sewage tank. Plasabas then processed the clean sea water through the vessel’s pollution prevention equipment as if it was oily bilge water in order to make it appear that the pollution prevention equipment was being properly used when in fact it was not. The electronic records indicate that approximately 9,600 gallons of clean sea water were run through the pollution prevention equipment.  
“This case demonstrates our commitment to investigating and prosecuting environmental crimes occurring at sea, no matter how wrongdoers may try to cover them up,” said Assistant Attorney General Todd Kim of the Justice Department’s Environment and Natural Resources Division. “The Department of Justice will continue to work with our partner agencies to ensure polluters are held fully accountable.”   
“We are committed to protecting our environment from people who cause immeasurable harm with short cuts,” said U.S. Attorney Randy Grossman for the Southern District of California. “This was a very calculated plan to violate the rules, and today the offenders are being held to account.” Grossman thanked the prosecution team and the U.S. Coast Guard for their excellent work on this case.
“This prosecution highlights the U.S Attorney’s Office and the U.S. Coast Guard’s dedication in safeguarding our oceans against those that seek to deliberately harm our natural resources,” said Captain James W. Spitler, Sector Commander of the Coast Guard Sector San Diego. “Illegal dumping of oil and falsification of oil record books are egregious violations. Today’s guilty plea should serve as a reminder that the Coast Guard and our partners at the Department of Justice will work tirelessly to hold accountable those that seek to deliberately discharge oil and falsify ship records.”
New Trade and Plasabas each pleaded guilty to a felony violation of the Act to Prevent Pollution from Ships for failing to accurately maintain the Longshore’s oil record book. Under the terms of the plea agreement and subject to court approval, New Trade will pay a total fine of $1,100,000 and serve a four-year term of probation, during which any vessels operated by the company and calling on U.S. ports will be required to implement a robust Environmental Compliance Plan. Sentencing for the defendants is currently set for Nov. 18.
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