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7 considerations for your next site-specific health and safety plan

(OSHA 29 CFR: 1926.21, 1925.65, 1910.120)

1. Do you have the right programs, processes and defensible data to prove you are actively guarding the health and safety of your workers?   

Under the exclusive remedy provision of workers compensation laws, most workers do not sue their employers.  This worker compensation protection, however, does not cover third parties who then become the targets of plaintiff attorneys’ looking to claim damages. 

2. Are you comfortable with the level of liability you would assume in the event that a worker was injured on a construction site?

Have you reviewed your professional liability coverage?  Certain locations (e.g., New York City) have experienced significant increases in claims for worker injuries on construction sites.  As a result, many insurance companies have dropped or limited their professional liability coverage for those companies that directly or indirectly manage or provide oversite of health and safety activities on a construction project.  Even if you feel you have no responsibility, liability exposure may be significant if you are sued as a third party.

3. Are your employees apprised of their obligation under OSHA’s multi-employer workplace policy?

In the event a worker is injured or killed on the site because he or she failed to take proper precautions, the first liability is with the company who employed the worker.  However, OSHA has redefined the definition of employer to include other companies or agencies that are also working on the construction project.  For example, OSHA has identified engineering firms as a Controlling Employer because of their oversite role on a project.  This not only exposes an engineering firm to OSHA citations but lays the groundwork for being named as a contributing third party in the accident.  This OSHA policy is complicated and requires a prescriptive company procedure to manage the conduct of employees working on a construction site.  It is critical to proactively prepare your staff for situations like this and others is step one in managing your liability on the site. 

https://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=INTERPRETATIONS&p_id=28265

4. Is the construction site in proximity to high density populations? 
Residences, roadways, shopping areas, pubic venues?

With certain contaminants and toxins, weather conditions can carry dusts, vapors and gases up to 2 miles away from the site of origination.  Even if a smell or toxin is not considered harmful at the concentration levels at which it is sensed, it can cause alarm and create public unrest that has the potential to disrupt operations unnecessarily.  Having a means to collect data to measure potential contaminants potentially emitted from a construction site, provides strong defensible position that people are not being harmed from construction activities.

5. Is the construction site in proximity to vulnerable populations like schools or hospitals?

Routine operations such as excavation and site preparation create dust.  While not all dust is harmful, air quality continues to be a major concern for vulnerable populations (sensitive receptors).  Proactively monitoring dust in the air continuously and maintaining transparency with the public can prevent complaints and claims of disease coming from toxic exposures.

6. Are you comfortable with the level of liability you would assume in the event that an outside group claimed they had been exposed to a toxin from your site?

Lawsuits pertaining to public exposure to toxins require the defendant (the company) to prove a negative.  In other words, you must show that the plaintiff was not exposed or that their injury did not result from toxic exposure originating from your construction site.  Proving a negative is extremely difficult unless you have sufficient environmental data covering the specific timeframe when the plaintiff claims exposure.  Real-time monitoring provides that level of data necessary to guard against this type of claim.  Furthermore, real time data allows you ensure that any toxic release is identified immediately, managed, and documented as such before it reaches toxic levels.

7. Does your firm have a core competency in health and safety that can continuously manage both worker health and public health with technology?

Leading environmental and engineering firms have begun to bundle health and safety with engineering and construction management for a comprehensive, turnkey approach to public and worker health and safety.  Ensuring your staff has the technology and the training necessary to deploy equipment, oversee multi-employer safety, and monitor toxins in real time can not only create efficiencies but also provide third party credibility and even outsource liability in certain cases.

If you have specific questions or concerns about these issues, please feel free to reach out to discuss your specific needs at info@emilcott.com.


Checking the list… Annual Regulatory Reporting Checklist

2016 has been full of surprises but it is never good to be surprised when it comes to annual regulatory reporting! There are many things that we can do to minimize surprises and last minute scrambling.  The time to start the process is in the beginning of January 2017.

First – identify the regulatory submissions required for your organization and the deadlines for filing. These include submissions of the EPA Community Right to Know (CRTK) Survey and the Hazardous Waste Biennial Report (or Annual for some states) which are due March 1st. Also on the horizon are the EPA Toxics Release Inventory (TRI) and the New Jersey Release and Pollution Prevention Report (RPPR) both due July 1st.

The compilation and reporting process is less stressful and yields better results if it is started early and a strategy is developed with deadlines in mind.  Waiting until the last minute not only increases the potential for making mistakes, it is sometimes hard to get the submission through due to high volume of users on the same electronic filing system.

Here is my personal January 1st kick-off list that should make the time-consuming process of CRTK and TRI reporting easier to handle….

Download the checklist e-book here!

1)      Start requesting and gathering all the information needed for these submittals.

  1. 2016 purchasing records of the chemicals you are reporting
  2. 2016 production logs where these chemicals are used
  3. 2016 waste information
  4. 2016 recycling information for any reported chemicals that were recycled
  5. 2016 air emission inventory

2)      Develop and write down a comprehensive set of due dates so that you have time to review information as it comes in. If the requested data is late, have a plan to follow up or find another source because the deadline is not going to change!

3)      Review the rules early to avoid unpleasant surprises.

4)      Allow time for anomalies and additional fact-finding. Reported amounts from different sources may not match. If you find that is the case, it is your job to figure out why and that always adds more time to the already challenging process.

Emilcott’s clients depend on our environmental knowledge and organizational capabilities to gather the required information on time and give them fair warning if there is trouble ahead.  My best advice for successful reporting-don’t wait until the last minute.  Much like filing your income taxes on April 15th, waiting until February to gather the information for the CRTK or starting in June for the TRI will be stressful and could result in costly errors. So, what am I doing today?  Like Santa, I’m checking my own list twice!

Have you been meeting the CRTK and TRI deadline? If yes, can you offer additional advice or do you have particular steps that you take to get the submission process rolling?


Portable Space Heater Safety in the Workplace

There are no federal workplace safety rules that prohibit portable electric space heaters in the workplace and statistics regarding commercial property damage caused by space heaters are not readily available. However, the U.S. Consumer Product Safety Commission estimates that more than 25,000 residential fires every year are associated with the use of space heaters—resulting in more than 300 deaths. In addition, an estimated 6,000 people every year receive emergency room care for burn injuries associated with contacting the hot surfaces of room heaters, mostly in non-fire situations.

 

So, as the cold weather sets in, employers may be considering if they should permit portable space heaters or actually discourage their use—even outright ban them. However, some work areas can just be cold. This is a frequent problem with older buildings or those areas near entries or doors.  Adding to the challenge, there are many employees with medical conditions that require extra warmth above what is normally considered comfortable and a space heater can fulfill that accommodation without heating up everyone else’s work space.

 

The good news—like so many other hazards, portable space heaters can be used safely if proper care and precautions are implemented. Any employer permitting the use of portable space heaters should highly consider a written policy to spell out exactly what is proper care and sufficient precautions. It could possibly prevent fires, injuries and even death.

 

Firstly, OSHA rules do require that electrical equipment must be used according to manufacturer specifications on the unit’s label and in the user manual. Therefore, only employer-purchased and issued space heaters with adequate safety features should be used.  Generally, regardless of the types of space heaters, the following applies:

 

  • Choose only thermostatically controlled heaters to avoid wasting energy or overheating
  • Most heaters come with a general sizing table, so select heaters of varying sizes to fit the size of the areas that needs heating
  • Position heaters on a level surface away from foot traffic
  • All space heaters must be kept away from any combustible material
  • Heaters should have a tip-over automatic shut down feature and a grounded three-pronged plug
  • Require that space heaters always be turned off when the area is not occupied—possibly unplugged at night
  • Plug heaters directly into a wall outlet and in plain sight
  • Remind employees that nothing should ever be placed on top of or touching the space heater
  • Heaters missing guards, control knobs, feet, frayed cords, or otherwise damaged must be taken out of service
  • Discontinue use of the heater if the heater causes the electrical circuit breaker to trip

 

It is not recommended that unvented combustion space heaters, such as those fueled by propane, natural gas, and kerosene, be used for heating inside areas. They introduce unwanted combustion products into the environment—including nitrogen oxides, carbon monoxide, and water vapor—and deplete air in the space. Check for local regulations banning unvented kerosene and natural gas heaters.

 

Office Safety is covered under the OSHA General Duty Clause. Good office “housekeeping” and safety policies can prevent injuries. If you have questions about office safety policy, Emilcott can help.


On the road with Emilcott…

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This week we paid a visit to the 101st Annual NJ League of Municipalities Conference in Atlantic City. We’ve had a terrific week, meeting new friends, partners, and customers, as well as reconnecting with old ones!  This was our first attempt to drive our state-of-the-art fit testing van into a convention hall, and we are proud to announce it went off without a hitch.

In celebration of our successful week, we are sharing our free Respiratory Protection e-book with an inspection, donning & doffing checklist.

Click here to download.

Thank you to everyone who stopped by our booth this week, and if you didn’t get a chance to visit our van at the convention center, we’d be happy to drive to your place next!  Just call us.

1-800-886-3645.


Does Your Facility Need to File an Annual Community Right to Know Survey?

Community Right to Know (CRTK) Surveys must be completed and submitted by March 1 of each year by all industries with a listed NAICS code. A listing of applicable NAICS codes can be found at the following url: http://www.nj.gov/dep/enforcement/opppc/rtknaics.pdf.

The New Jersey Department of Environmental Protection (NJDEP) is initiating an enforcement effort against all entities that have not filed their 2015 CRTK Survey and did not receive an exemption from filing. If your company has not filed a CRTK Survey for 2015 and has not received an exemption, the NJDEP is encouraging entities to file. Filing before being forced to do so by the NJDEP may reduce the risk of a monetary fine.

If you are unsure whether you should file a survey or file for an exemption, here are the basics:

Requirements for Filing a CRTK Survey

1. Your facility is in a regulated NAICS Code

2. Your facility stored reportable quantities of regulated substances as listed in:

http://www.nj.gov/dep/enforcement/opppc/crtk/ehsalpha.pdf and

http://www.nj.gov/dep/enforcement/opppc/crtk/ehscasno.pdf

For an Exemption:

You must submit a CRTK Reporting Exemption Form which you can find at: http://www.nj.gov/dep/opppc/crtk/crtkrptexemptfm.html , if your facility meets one of the following criteria:

1. Your facility is in a regulated NAICS Code however NO environmental hazardous substances (as

listed in:) were present in 2015

2. Listed substances were present but below the applicable reporting thresholds;

3. Your facility is in a regulated NAICS Code and you meet the definition of an unstaffed site

(“Unstaffed site” means a remotely operated site, not contiguous to any other staffed sites and at which no full-time or part-time employees are assigned at any time except for maintenance or emergency repair – N.J.A.C. 7:1G1.2 (h)); or

4. If you determine that your facilities are in a regulated NAICS Code and ALL FACILITIES YOU OWN IN NJ conduct administrative office functions only.

Emilcott professionals are here to help if you determine that your facility needs to file a 2015 CRTK Survey or file for an exemption. Emilcott can also act as a liaison between your organization and the New Jersey Department of Environmental Protection.


OSHA Fine Increase

OSHA fines have remained the same since 1990 and are increasing now due to congressional legislation that required all federal agencies to raise penalties based on inflation.

OSHA Fines will increase 78% from previous levels.

Screen Shot 2016-08-29 at 5.12.31 PM

State OSHA plans are also required to adopt the new maximum penalty levels.

The new penalties will take effect after August 1, 2016.

Any citations issued by OSHA from now on will be subject to the new penalties if the related violations occurred after November 2, 2015. Meaning if the inspection occurred after 11/2/15 and the citations were not issued until after 8/1/16, the new fines apply.

Annual increases for inflation will now be required and posted by January 15 of that year.

OSHA will continue to work with small businesses to provide reductions based on employer size and other factors.


OSHA New Injury/Illness Reporting Requirements

On May 12, 2016 the New OSHA Recordkeeping Rule was finalized and it will become effective January 1, 2017.

Electronic Data Submission

Some employers will be required to submit annual recordable injuries/illnesses reports electronically and this data will be available to the public. This is intended to:

 Encourage employers to reduce accidents

 Provide improved data to researchers to innovate safety solutions

 Allow the public, prospective employees, customers, competitors, and investors to assess the company’s safety record

Employers with 250 or more employees, who are required by OSHA to maintain work related injury/illness data, will be required to submit information from the OSHA 300 Log, 300A Summary, and 301 Form (First Report of Injury). A phased in approach allows that only the 300A Summary data needs to be submitted in 2017 for the 2016 data. In subsequent years, data from all three documents will be required.

Employers with 20-249 employees in designated high injury rate industries will be required to submit information from a 300A Summary. A list of the designated high injury rate industries is attached.

Submission deadline for 2016 OSHA 300A Summaries from both types of employers is 7/1/2017.

Submission deadline for 2017 data, from both types of employers, is 7/1/2018. Subsequent year’s submission deadlines will be March 2 of the following year.

OSHA will remove all personally identifiable information prior to posting the data on its website.

Employers that are exempted from the recordkeeping requirements, have less than 20 employees or are conditionally exempted based on NAICS code, are not required to report electronically.

Non-Retaliation, Informing Employees and Drug Testing Policies

The final rule also includes provisions to encourage worker reporting of injuries/illnesses and prohibits employers from retaliating against these employees.

 Employers must inform employees of their right to report workplace injuries/illnesses by posting or other means

 The procedure for reporting must not discourage employees from reporting

 Employers may not retaliate or penalize employees who report injuries/illnesses

The rule may require changes to post incident drug testing policies. The employer must be able to establish that the purpose of the test was not retaliation as would be the case if such testing were required by a law (ie. DOT). However, if not required by law, employers will need to show appropriate motive for testing.

OSHA New Injury/Illness Reporting Requirements


EPA Updates the Community Right to Know Survey to Align with GHS Hazard Communication Standard

 

The Environmental Protection Agency (EPA) has revised the reporting requirements of the Community Right to Know Survey (CRTK) to align with the terminology and chemical hazard categories of the Globally Harmonized System (GHS) Hazard Communication Standard (Hazcom). The final rule was released in the June 13, 2016 Federal Register: https://www.gpo.gov/fdsys/pkg/FR-2016- 06-13/pdf/2016-13582.pdf. Companies required to complete the annual CRTK Survey (also known as Tier II)will see some changes to the reporting forms as a result of the new rule.

What will change?

1. GHS has replaced “Material Safety Data Sheet (MSDS)” with the term “Safety Data Sheet (SDS)”.

Instructions and reporting forms for the CRTK Survey will use both terms and their acronyms.

2. Changes to the “Hazard Category” section in Part 2 of the CRTK Survey.

Since its implementation in 1987, the CRTK Survey form has had five (5) hazard category

options. These categories included fire, sudden release of pressure, reactive, acute health

hazard, and chronic health hazard.

The new rule replaces the 5 hazard categories with two (2) hazard categories. The newly defined

hazard categories include:

Screen Shot 2016-08-29 at 5.08.24 PM

The June 13, 2016 final rule had inadvertently omitted the hazard ‘‘serious eye damage or eye irritation’’under the definition of ‘‘health hazard’’. Therefore, EPA released a correction in the July 21, 2016 Federal Register: https://www.gpo.gov/fdsys/pkg/FR-2016- 07-21/pdf/2016- 17277.pdf adding “serious eye damage or eye irritation” to the definition of “health hazard”.


DHS is making Changes to the Top Screen and Site Security Plan

According to a Federal Register notice filed July 20, 2016

(https://www.federalregister.gov/articles/2016/07/20/2016-16776/chemical- facility-anti- terrorism-standards#h-9) , the Department of Homeland Security (DHS) has temporarily suspended the requirement to submit Top-Screens and Security Vulnerability Assessments in order to allow for an improved tiering methodology and roll out a new Chemical Security Assessment Tool (CSAT 2.0). .

 The current tiering structure consists of 1, 2, 3, and 4. Tier 1 facilities are those that have been

determined to have significant risk; Tier 4 facilities have been determined to have lower risk.

The Federal Register notice does not reveal the new tier structure.

 The current CSAT tool requires filing of a separate Security Vulnerability Assessment (SVA) and

Site Security Plan (SSP) – the new CSAT 2.0 will combine the SVA and SSP.

If your facility has already filed Top Screen and SSP because your facility has a Chemical of Interest (COI) at or above the threshold quantity, there will be some steps to take when the CSAT 2.0 system is deployed (expected to be September – October 2016):

1. DHS will begin notifying facilities that have already submitted their programs to submit a new

Top Screen using the CSAT 2.0 tool.

2. DHS will determine the new Tier level for that facility

3. A facility may choose to file a new Top Screen prior to receiving written notification from DHS.

This could be advantageous for facilities that believe that their tier level will be lowered under the new tiering method.

If your facility has filed partial Security Vulnerability Assessments (SVA) and/or Site Security Plans (SSP), DHS will delete these and the data and will no longer be retrievable. If your facility has submitted a SSP through the current CSAT tool, the SSP application will be available and pre-populated in CSAT 2.0.

If you receive a letter from DHS and don’t believe that your facility is required to file a Top Screen, you must notify DHS by:

1. Accessing CSAT 2.0 and submitting a Top-Screen with no COI selected  or

2. Send a letter in reply to the notification letter

CSAT 2.0 is expected to reduce filing time by:

1. 90% for the completion of the Security Vulnerability

2. 70% for the completion of the Site Security Plan

Emilcott has CV-I Authorized professionals who can help with determining the Top Screen applicability for your facility.


Mid-Year Regulatory Submission Reminder

Just as we all take a deep breath after getting the CRTK submissions on March 1 — now it is time to get started pulling together the information for the next round of submissions.  We’ve pulled together our Spring and Summer submission list.  Similar to our 1Q2016 Regulatory Submission Reminder, we detail information about the regulations that require submissions from mid-April through September 2016 along with specific dates to help you ensure that everything is submitted on time! 


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