OSHA Inspection Leads to Costly EPA Enforcement Settlement

In October 2009, OSHA cited a Cambridge, MA embalming fluid manufacturer and supplier with 41 safety and health violations resulting in $138,000 in fines. Shortly thereafter, in January 2010, the EPA also inspected the Cambridge facility and identified several additional related violations of environmental regulations. In 2013, the company settled with EPA and will pay a $400,000 penalty and improve its public safety activities. Coincidence? Not likely.

Because so many safety, health and environmental regulatory requirements are similar or closely related, OSHA, EPA and other regulatory agencies cooperate at many levels to promote and enforce compliance. As a result, one agency’s citations often signal related violations of another agency’s regulations, resulting in additional inspections and enforcement actions. On the other hand, multiple violations from one agency can also compel  another agency inspection simply because of the number or severity of the violations, signaling an overall lack of attention to regulatory compliance by the company.

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In the case of the embalming chemical company, the 2009 OSHA inspection resulted in 38 serious citations and four other-than-serious citations for:

• Lack of a process safety management (PSM) program,
• Lack of proactive procedures to assess and address formaldehyde hazards related to equipment and processes,
• Lack of controls and safeguards to reduce formaldehyde exposed to over-exposed workers,
• Deficiencies in several programs including respiratory protection, emergency response, hazardous energy control, chemical hygiene, and chemical hazard communication, and
• Electrical hazards, unguarded moving machine parts, lack of training, unclean work areas, and use of unapproved forklifts in areas where flammables were used.

In particular, the serious violations, which are issued when death or serious physical harm are likely to result and the employer knew or should have known of the hazards, are big red flags for other agency enforcement watch dogs. In addition, the lack of a PSM program and procedures to manage hazards may also signify a similar lack of attention to related environmental regulations such as those pertaining to risk management .

Not surprisingly, when EPA inspected the Cambridge facility and company warehouses in Texas, Illinois and California, they found a range of violations relating to the Clean Air Act (CAA) and the Emergency Planning and Community Right-to-Know Act (EPCRA). According to the EPA’s complaint, all of the facilities failed to comply with chemical risk management planning and all but the Cambridge facility failed to file EPCRA chemical inventory reports, all part of the Risk Management Program regulated by the EPA and submitted every five years.

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EPA also noted the “most serious and numerous violations” were cited at the Cambridge facility, which was located in an area of business and public transit. Due to the hazardous nature of formaldehyde, a chemical that is regulated under the EPA’s RMP, is flammable and can also form toxic gas, the threat to public safety was a primary consideration. In short, during the inspection the EPA found that although the company had originally filed an RMP for its compounding process, it did not submit the required  five-year update nor was it in compliance with the RMP regulations. No risk management plans were ever submitted for the company’s warehouse facilities.

In addition, a post- inspection analysis by EPA also found the potential for fire and explosion due to the build-up of flammable vapor and possible sparks from static or improperly rated electrical sources. The related violations included:

• Lack of tank design information,
• Improper maintenance of formaldehyde tanks and tank supports,
• Lack of tank overfill controls,
• Compromised secondary containment of tanks,
• Lack of emergency lighting, and
• Broken overflow detectors.

When comparing the violations cited by both agencies months apart, it is easy to see cross-over  relationships between regulations and citations. Tomorrow we look closer at the relationship between EPA and OSHA regarding chemical risk management and enforcement.