ISSA Legislative & Regulatory Update January 2016

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Hot News!
Senate Passes Bill to Modernize Toxic Substances Control Act

National News
Overtime Pay Proposal Expected to be Finalized in 2016
Obama Signs into Law a Bill Banning Microbeads
OSHA Walking/Working Surfaces Revised Final Rule Delayed
One Year Late, OSHA Posts Online Injury Reporting Form
FTC Fines Major Retailers $1.3M for Misleading Environmental Claims
EPA Final Rule Clarifies Contents of Minimum Risk Pesticides
EPA Fines Manufacturer $1M for Illegal Storage of Hazardous Waste
More Aggressive Federal Enforcement for Workplace Safety Violations

State Activity
State Minimum Wage Increases Effective 2016

Safety and Health Corner
OSHA and Labor Law Workplace Posters
Comment Period Open Another Month on Safety and Health Management

Events
Webinar: Transportation of Hazardous Materials

Hot News! 

Senate Passes Bill to Modernize Toxic Substances Control Act

In late December, the U.S. Senate passed by voice vote legislation (S. 697) that would overhaul and modernize the Toxic Substances Control Act (TSCA). The Senate will work with the House to merge their respective bills. The House bill sailed through that chamber in June with a 398-1 vote.

New Requirements Established.  Some of the mandates in S. 697 that are not found in the Toxic Substances Control Act will:

• Require a safety review for all chemicals in commerce;
• Ensure new chemicals pass a safety check before they can be sold on the market; 
• Explicitly require protection for populations whose exposures, age or other conditions make them vulnerable to chemicals;
• Give the EPA new authority to require companies to test new and existing chemicals for safety; and
• Retain enacted state regulations and laws for chemicals, but temporarily stop new regulations while the agency is assessing a chemical’s risks.

The legislation is available at http://www.epw.senate.gov/public/_cache/files/e56cfb54-bef6-4625-ba0d-590af2a40c73/s.697—inhofe-substitute—10-21-15-.pdf.

Industry groups and NGOs have both praised the legislation noting that it would substantially improve our nation’s management of chemical safety while balancing the commercial and competitive needs of the business community. 

Upton, Shimkus to Discuss TSCA Update Strategy.  House Energy and Commerce Committee Chairman Fred Upton (R-Mich.) and Rep. John Shimkus (R-Ill.), chairman of the energy committee’s Environment and the Economy Subcommittee, will meet privately to discuss how best to work towards reconciling the House and Senate bills that would update TSCA. 

Nonetheless, Sen. Upton and Rep. Shimkus assured the public that updating the nearly 40-year-old chemicals statute “remains a top priority” as they continue to explore political strategies that would ensure the ultimate passage of TSCA legislation.  Negotiations are expected to begin shortly after both the Senate and House reconvene, with a goal towards enacting legislation in 2016.

National News

Overtime Pay Proposal Expected to be Finalized in 2016

Perhaps the most sweeping action that is expected to occur in 2016 will be the issuance of a final rule that is expected to extend overtime pay to nearly 5 million white-collar workers. The U.S. Department of Labor proposed the rule in June as a result of an executive order President Obama issued in May 2015.

At the present, the Department of Labor (DOL) is reviewing the more than 270,000 comments it received in response to its proposal.  However agency officials indicated that the Department is on track to issue a final rule by July 2016, with an effective date sometime after that. 

Background.  DOL’s proposed rule would revise the existing Fair Labor Standards Act (FLSA) exemption from overtime pay for executive, administrative, and professional employees. Specifically, the proposal would more than double the salary level required to qualify for the white collar exemptions from the overtime pay requirements from $455 per week/$23,660 per year to $970 per week/$50,440 per year. DOL also proposes automatically increasing this minimum salary going forward on an annual basis and publishing the increased minimum salary only 60 days before it becomes effective, with no opportunity for comment or input from employers who will have to comply.

Prepare Now. Anticipating the final rule will be substantially similar to the DOL’s proposed rule, employers should be evaluating their workforces now to determine how to comply with the final rule and whether to implement strategic compensation changes regarding those positions most likely to be impacted.

Obama Signs into Law a Bill Banning Microbeads

President Barack Obama on Dec. 28 signed the Microbead-Free Waters Act of 2015 into law.  This legislation requires the U.S. Food and Drug Administration (FDA) to ban the sale, distribution and manufacture of personal care products that contain microbeads—often advertised as abrasives that claim to “exfoliate and cleanse” skin or teeth.

Environmental groups and wastewater communities have raised concerns about plastic microbeads because the tiny pieces of spherical plastics swirl down the drains of U.S. households, flow unimpeded through wastewater treatment plants and spill into rivers, lakes and estuaries, accumulating in ever-increasing quantities where people fish and swim. The microbeads are known to absorb toxic substances while in the waterways. Numerous studies have raised concern over their consumption by fish and other wildlife that could eventually enter the food chain.

The Microbead-Free Waters Act of 2015 amends the Federal Food, Drug and Cosmetic Act, and provides a staged approach for banning the manufacture and sale of products containing microbeads defined as “any solid plastic particle that is less than five millimeters in size and is intended to be used to exfoliate or cleanse the human body or any part thereof,” including toothpaste.

Under the law, the manufacture of products containing microbeads must cease beginning July 1, 2017, and introduction of the products must stop a year later. The manufacture of rinse-off cosmetics must stop by July 1, 2018, and introduction of the products into interstate commerce must end a year later.

Industry insiders predict that the ban will spur an important transition from plastic microbeads to non-synthetic alternatives in personal care products.  The federal ban on the manufacture and use of microbeads follows the enactment of similar bans by several states and local governments over the past few years.  At least nine states and numerous local jurisdictions already have bans on microbeads in personal-care products, creating a patchwork of differing laws on the synthetic particles.  The federal ban is expected to bring uniformity to microbead regulation.

OSHA Walking/Working Surfaces Revised Final Rule Delayed

A draft final rule that would substantially revise the OSHA Walking/Working Surfaces regulation was withdrawn Dec. 21 from its review at the White House’s Office of Information and Regulatory Affairs (OIRA), thereby further delaying the finalization of a rule that OSHA originally proposed to revise in 1990. 

OSHA offered no explanation for why it withdrew the draft final rule. The OIRA review is typically the last outside analysis of a would-be regulation prior to it taking effect.

Employee slips, trips and falls from work surfaces (such as floors, platforms and stairs) are considered to be a leading cause of worker-related injury and death.

Background.  In 1990, OSHA published a proposed rule addressing slip, trip, and fall hazards and establishing requirements for personal fall protection systems. As the years have passed, improved technologies and procedures have become available to protect employees from these hazards. In light of these developments, OSHA published a notice to reopen the rulemaking for comment on May 2, 2003. The agency published a second proposed rule on May 24, 2010, which reflected all current information and improved consistency with other OSHA standards. It is anticipated now that the revised OSHA walking working surfaces rule will be published as final in April 2016.

Rule Review Log Jam.  Washington insiders speculate that the decision to withdraw the rule may be the result of OSHA submitting to OIRA on Dec. 21 the draft final rule updating silica protection requirements. In recent years, OIRA has generally not had more than two OSHA regulations under review at the same time. The addition of the silica rule would have raised the number to three, leading insiders to speculate that the rule was withdrawn because of capacity issues.  Nonetheless, the agency expects to resubmit the regulation to OIRA in early 2016.

New Provisions.  Among other things, the revised proposed rule would add a new section that addresses the maintenance and repair of walking-working surfaces in general industry. 

Proposed paragraph (d)(1) requires the employer to ensure through regular and periodic inspection and maintenance that walking-working surfaces are in a safe condition for employee use.  Proposed paragraph (d)(2) requires the employer to ensure that all hazardous conditions are corrected, repaired, or guarded to prevent employee use until repairs are made. Proposed paragraph (d)(3) requires that where hazardous conditions may affect the structural integrity of the walking-working surface, a qualified person must perform or supervise the maintenance or repair of that surface.

The intent of proposed paragraph (d) is to ensure that the employer, or the employer’s designee, monitors walking-working surfaces to identify hazards that may lead to injury or death and to address those hazards promptly. A qualified person must perform or supervise the repair where hazards are of such a nature that the structural integrity of the walking-working surface may be affected. While the provision does not require the employer to develop an inspection schedule, or keep records of inspections, it does require the employer to ensure that inspections are conducted frequently enough so that hazards are corrected in a timely manner.

ISSA will continue to monitor the publication of the OSHA revised regulation on walking-working surfaces and report as appropriate to the membership. 

One Year Late, OSHA Posts Online Injury Reporting Form

To help employers comply with new requirements to report severe worker injuries, OSHA has created a streamlined reporting webpage and now offers the option of reporting incidents online.

The expanded reporting requirements took effect in January 2015. Now, in addition to reporting any worker fatality within 8 hours, employers must report within 24 hours any severe injury – defined as an amputation, hospitalization or loss of an eye. In the first year of the new requirement, OSHA received about 12,000 reports. The agency plans to release complete numbers and a full analysis of the Year One reports soon.

The web page and online reporting form, activated on Dec. 24, comes one year after OSHA promised employers it would provide an online method to report injuries and fatalities.

In addition to asking for the employer’s name, address and contact information, the online form requests:

• A description of what happened,
• The names of the victims,
• What the injured employee was doing before the incident,
• The type of injury, and
• That object or substance “directly harmed” the employee.

The new form is available at https://www.osha.gov/report.html. For more information on the revised OSHA reporting requirements, visit https://www.osha.gov/recordkeeping2014/index.html.
 

FTC Fines Major Retailers $1.3M for Misleading Environmental Claims

Retailers Bed Bath & Beyond, Nordstrom, JC Penney and Backcountry.com have been fined $1.3 million by the Federal Trade Commission (FTC) for misleading environmental claims.

Under the court order settling the FTC’s charges, the four companies are barred from labeling and advertising rayon textiles as made of bamboo and will pay the following civil penalties: Bed Bath & Beyond will pay $500,000, Nordstrom will pay $360,000, JC Penney will pay $290,000, and Backcountry.com will pay $150,000.

The FTC says the retailers violated the FTC Act and the agency’s Textile Rules.

“It’s misleading to call bamboo that has been chemically processed into rayon simply ‘bamboo,’” said Jessica Rich, director of the Bureau of Consumer Protection. “It’s important for [consumers] to know that textiles marketed as environmentally friendly alternatives may not be as ‘green’ as they were led to believe.”

The complaints allege the four companies broke the law by continuing to misrepresent or mislabel rayon products as “bamboo” despite receiving warning letters from the FTC in 2010.

The FTC says its publication, How to Avoid Bamboozling Your Customers, provides useful information on how to correctly label and advertise textiles that are rayon made from bamboo and cautions sellers that it is highly unlikely they are selling actual bamboo fiber products.

The FTC has also announced it is sending letters to other retailers to help protect consumers from deceptive “bamboo” claims by urging retailers to check their own inventories and ensure proper labeling and advertising of rayon textile products.

In 2013, Amazon, Leon Max, Macy’s and Sears – and Sears’ Kmart subsidiaries – agreed to pay $1.26 million in penalties to settle FTC charges the retailers misled customers by selling rayon fabrics labeled as made from bamboo fiber.

The new FTC action on companies’ bamboo claims follows the agency’s ongoing crackdown on false and misleading environmental claims, including five enforcement actions that specifically address biodegradable plastic claims.

EPA Final Rule Clarifies Contents of Minimum Risk Pesticides

The Environmental Protection Agency has published a rule that clarifies the active and inert ingredients that are permitted in minimum risk pesticides, and the way ingredients are identified on the labels of such products.

Minimum risk pesticides are a special class of pesticides that are not required to be registered with EPA because their ingredients, both active and inert, pose little to no risk to human health or the environment. The Agency is reorganizing these lists and adding specific chemical identifiers to make clearer to manufacturers, the public, and federal, state, and tribal inspectors the specific ingredients that are permitted in minimum risk pesticide products. EPA is also requiring producer contact information and the use of specific common chemical names in lists of ingredients on minimum risk pesticide product labels. 

EPA’s revisions to the exemption, announced in a December 28, 2015, Federal Register notice, do not alter the substance of the minimum risk pesticide ingredient lists, but more accurately describe which chemical substances can be used in pesticide products that are exempt from federal pesticide registration requirements. State enforcement agencies have expressed support for the changes.

EPA believes the industry – manufacturers of these products and businesses considering entering the market for minimum risk pesticides – will benefit from clearer guidance. Consumers will benefit from the clearer information on which chemicals the products contain. 

To view the final rule, go to https://www.gpo.gov/fdsys/pkg/FR-2015-12-28/pdf/2015-32325.pdf.   Please see EPA’s minimum risk pesticide Web pages for more information on these products that are afforded preferential treatment under the federal regulations.

EPA Fines Manufacturer $1M for Illegal Storage of Hazardous Waste

A manufacturer of chemical products based in the northeast was fined $1 million after pleading guilty in a U.S. District Court to illegally storing hazardous waste as well as transporting it.

The manufacturer pleaded guilty in late December in U.S. District Court to storing certain hazardous chemical waste without a permit at its primary manufacturing facility. The company also plead guilty to transporting ferric chloride in unplacarded trucks after a 2012 spill at its plant.  The company will pay a $1 million criminal fine and a $250,000 civil fine from the U.S. Environmental Protection Agency.

The spill of several hundred gallons of ferric chloride was mostly vacuumed up. However, the manufacturer was aware of the hazardous nature of ferric chloride, and it did not properly test the waste and instructed the transportation company to move the waste as nonhazardous, without the proper placards and manifests, according to the Justice Department.

In addition, the manufacturer was accused in 2013 of illegally storing numerous containers of chemical waste that should have been disposed. Notified that the EPA would inspect the facility, the manufacturer directed its employees to load three trailers with the chemical waste in an attempt to prevent inspectors from discovering it, the Justice Department said.

Two of the three trailers were taken off-site. The third trailer was stored on the manufacturer’s property for almost a year.  Its contents were discovered in late November 2014 by law enforcement officers executing a search warrant. That trailer was found to contain corrosive hazardous waste that the manufacturer did not have a permit to store on its facility, the DOJ said.

More Aggressive Federal Enforcement for Workplace Safety Violations

Looking to send a strong message to employers who fail to provide a safe workplace, the Departments of Labor and Justice (DOL and DOJ, respectively) are teaming up to investigate and prosecute workplace safety and health endangerment violations of federal statutes such as  the Occupational Safety and Health Act (OSH Act). 

This new initiative differs from past efforts because federal investigators and prosecutors will look to possible environmental crimes committed by companies in conjunction with workplace safety violations in order to seek felony convictions and enhanced penalties available under federal environmental laws. With the DOJ’s additional focus on holding individual corporate wrongdoers accountable, corporate executives could find themselves criminally and civilly liable for their roles in such crimes.

Bigger Penalties.   Federal worker safety statutes emphasized in the endangerment initiative generally only provide for misdemeanor penalties and monetary penalties that are significantly lower than various environmental statutes. By looking for environmental offenses to add to workplace safety violations, prosecutors will be able to seek felony convictions and enhanced penalties under Title 18 of the U.S. Code and the federal environmental laws. The stated intent is to “remove the profit from these crimes by vigorously prosecuting employers who break safety and environmental laws at the expense of American workers.”

In addition to prosecuting environmental crimes, the Environment and Natural Resources Division looks to strengthen its pursuit of civil cases that involve worker safety violations. The division believes that violations of the Clean Air Act, Resource Conservation and Recovery Act, and the Toxic Substances Control Act can have a direct impact on workers who must handle dangerous chemicals and other materials as part of their work duties.

Linking Safety Violations with Environmental Crimes.  The DOJ and DOL believe that if an organization skimps on safety and health protections for its workers, it will be more likely to also ignore environmental regulations. The government points to statistics of workplace deaths and injuries, including 13 worker deaths on average in the U.S. each day, due in part to exposure to toxic and hazardous substances at work.

In essence, this initiative provides the government with a mechanism to turn a workplace safety investigation into an examination of a company’s environmental compliance. The plan is for the DOJ’s Environment and Natural Resources Division and the U.S. Attorneys’ Offices to work in conjunction with the DOL’s Occupational Safety and Health Administration, Mine Safety and Health Administration, and Wage and Hour Division to increase the frequency and effectiveness of criminal prosecutions of worker endangerment violations.

Individual Accountability for Corporate Wrongdoers.  The new worker endangerment initiative will target companies who have committed workplace safety and environmental violations.  However, due to a recent push by the DOJ to focus on holding individuals accountable for corporate wrongdoing, company executives and decision-makers could be the target of increased scrutiny during the government’s investigation.

In September 2015, Deputy Attorney General Sally Quillian Yates issued a memorandum outlining the steps that DOJ attorneys should take in investigating corporate misconduct in order to hold more executives and managers accountable for corporate wrongdoing. The steps, some of which represent policy shifts, are:

• Corporations must provide to the government all relevant facts relating to the individuals responsible for the misconduct in order to qualify for any cooperation credit;
• Criminal and civil corporate investigations should focus on individuals from the inception of the investigation;
• Criminal and civil attorneys handling corporate investigations should be in routine communication with one another;
• Absent extraordinary circumstances or approved departmental policy, the DOJ will not release culpable individuals from civil or criminal liability when resolving a matter with a corporation;
• DOJ attorneys should not resolve matters with a corporation without a clear plan to resolve related individual cases, and should memorialize any declinations as to individuals in such cases; and
• Civil attorneys should consistently focus on individuals as well as the company and evaluate whether to bring suit against an individual based on considerations beyond that individual’s ability to pay.

The DOJ believes holding individuals accountable for corporate wrongdoing will be effective in reducing corporate misconduct because it will deter future illegal activity, incentivize changes in corporate behavior, hold the proper parties responsible for their actions, and promote the public’s confidence in our justice system.

What This Means For Employers.  Companies subject to a workplace safety investigation can expect that their environmental compliance will also be investigated. If federal prosecutors find that a company violated environmental laws, they will pursue the stiffer criminal and civil penalties provided by those environmental statutes. In addition, because of the DOJ’s renewed focus on individual accountability, employers should expect that future safety and environmental investigations will focus on individual corporate actors who engaged in or authorized the wrongdoing in order to hold such individuals criminally and civilly liable.

State Activity

State Minimum Wage Increases Effective 2016

In the absence of action at the federal level, state and local governments continue to be busy with minimum wage legislation. Employers with multi-state operations must remain abreast of these changes. Furthermore, many state laws provide for automatic annual increases based on the U.S. Consumer Price Index and inflation. Except as noted below, higher state minimum wages are effective January 1, 2016.  In addition, a number of localities around the country have increased their minimum wage rates effective January 1, 2016. A few of these localities are listed below.

Of course, these changes to minimum wage rates also affect overtime pay calculations. Finally, we also provide information relating to increases in the minimum weekly salary that must be paid to certain exempt employees to satisfy the Fair Labor Standards Act salary basis test for the exemptions.

Alaska – General minimum wage increases from $8.75 to $9.75 an hour. In addition, to satisfy the salary basis test for exempt status, the minimum weekly salary for bona fide executive, professional, and administrative employees will increase from $700 to $780 per week (i.e., two times state minimum wage for the first 40 hours of employment).

Arkansas – General minimum wage increases from $7.50 to $8.00 an hour.

California – General minimum wage increases from $9.00 to $10.00 an hour. In addition, to satisfy the salary basis test for exempt status, the minimum annual salary for bona fide executive, professional, and administrative employees will increase from $37,440 to $41,600 (i.e., two times state minimum wage for the first 40 hours of employment each week).

Colorado – General minimum wage increases from $8.23 to $8.31 an hour.

Connecticut – General minimum wage increases from $9.15 to $9.60 an hour.

Hawaii – General minimum wage increases from $7.75 to $8.50 an hour.

Massachusetts – General minimum wage increases from $9.00 to $10.00 an hour.

Michigan – General minimum wage increases from $8.15 to $8.50 an hour.

Nebraska – General minimum wage increases from $8.00 to $9.00 an hour.

New York – General minimum wage increases from $8.75 to $9.00 an hour, effective December 31, 2015.  In addition, to satisfy the salary basis test for exempt status, the minimum weekly salary for bona fide executive and administrative employees will increase from $656.25 to $675 per week.

Rhode Island – General minimum wage increases from $9.00 to $9.60 an hour.

South Dakota – General minimum wage increases from $8.50 to $8.55 an hour.

Vermont – General minimum wage increases from $9.15 to $9.60 an hour.

West Virginia – General minimum wage increases from $8.00 to $8.75 an hour.

(Local Minimum Wage Rate Increases)
Oakland, CA – General minimum wage increases from $12.25 to $12.55 an hour.

Portland, ME – General minimum wage increases from $7.50 (the state minimum wage) to $10.10 an hour.

Seattle, WA – General minimum wage increases (for large employers employing at least 501 employees) from $11.00 to $13.00 an hour (or $12.50 for such employers that contribute to health benefits). For small employers (employing 500 or fewer employees) the 2016 rate is $12.00 or $10.50 an hour, depending on whether health benefits are provided.

Safety and Health Corner

OSHA and Labor Law Workplace Posters

OSHA and the U.S. Department of Labor impose obligations upon employers to post certain information in the workplace.  The following is a reminder regarding the most common employer workplace poster requirements established by the DOL and OSHA.  While ISSA does not provide these posters directly to our members, they are freely available through the federal agencies’ respective websites as described below.

Department of Labor.  The Fair Labor Standards Act minimum wage poster is available at:  http://www.dol.gov/whd/regs/compliance/posters/flsa.htm

Please note that DOL does require other posters, however, they are not necessarily applicable to all employers.  To help you determine which posters you may need to display, DOL has an “elaw advisor” that helps you make those determinations at:  http://webapps.dol.gov/elaws/posters.htm

In addition, here is a direct link to the various posters required by the DOL:  http://www.dol.gov/whd/resources/posters.htm

OSHA.  The direct link to the OSHA workplace poster is:  https://www.osha.gov/Publications/osha3165.pdf

In addition, here is a link to list of OSHA pubs and other posters:  https://www.osha.gov/pls/publications/publication.html

Comment Period Open Another Month on Safety and Health Management

Public comments on OSHA’s updated Safety and Health Program Management Guidelines will be accepted until Feb. 15, 2016. This proposed revision of the voluntary guidelines first published in 1989 includes key principles such as finding and fixing hazards before they cause injury or illness, and making sure that workers have a voice in safety and health. New material should be particularly helpful to small- and medium-sized businesses and address ways in which multiple employers at the same worksite can coordinate efforts to make sure all workers are protected equally. To learn more and post comments, please visit the Safety and health Program Management guidelines webpage.

Events

Webinar:  Transportation of Hazardous Materials

ISSA invites you to attend Part 1 of a 2 part complimentary webinar on the Transportation of Hazardous Materials Regulations scheduled for February 2, 2016 at 11 a.m. Central (12 p.m. Eastern).  Part 2 is scheduled for March 1^st at the same time.  This program is part of ISSA’s webinar series that covers the labeling and hazard communication regulations for chemical cleaners—see www.issa.com/cleaners.  

Manufacturers and Distributors.  Manufacturers and distributors of chemical cleaners must comply with the U.S. Department of Transportation regulations that govern the labeling and hazard communication elements required for the transport of hazardous materials. This invaluable two-part webinar presented by ISSA will focus on the regulations surrounding the transport of hazmat, including the shipping paper, labeling, marking, placarding, and packaging requirements.  It is recommended that distributors and manufacturers of chemical cleaners attend this program.

1.   For more information, including how to register for the DOT webinars, please click here.

Webinar Series. The 2-part webinar on the DOT Hazardous Materials Transportation Regulations is part of a series of complimentary webinars covering 5 topics that will familiarize ISSA members with the federal regulatory scheme that governs the labeling, hazard communication and other requirements related to chemical cleaners.  For complete information, please visit www.issa.com/cleaners.

 This webinar series is sponsored by Avery Products Corp. 
 Learn about Avery UltraDuty™ GHS chemical labels at www.avery.com/ghs.