The Phylmar Group, Inc. Newsletter
January 2016
In This Issue
Breaking Down the Department of Transportation's Emergency Response Guidebook
Precedential Decison Allows Enterprise-Wide Hazard Abatement Case to Proceed
Upcoming Events
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Issue #72: Breaking Down the Emergency Response Guidebook for the Safety Professional; Court Sets Precedent Allowing OSHA to Seek Enterprise-Wide Hazard Abatement
 January 2016

Dear Subscriber,  

Welcome to the January 2016 edition of the Phylmar Newsletter.   
We begin the first issue of the year with an article that provides an overview of the Department of Transportation's Emergency Response Guidebook (ERG) and discusses how it can be a valuable resource for safety professionals planning ahead for emergency incidents specific to their facility.  DOT makes available an ERG mobile app, and an updated guidebook with several changes that is expected to be released in early 2016. 
Next, we turn to a recent decision by an administrative law judge, ruling OSHA may have the legal authority to order enterprise-wide abatement from employers beyond the specific violations identified in its citations.  OSHA has already commented that the decision sets a precedent for the Agency.
The case, now clear to proceed to trial, involves citations from one location and seeks abatement for 170 facilities operated in the United States.  
We also want to remind folks to come visit the PhylmarTV channel on YouTube to find videos covering a variety of topics for the EHS/Sustainability professional.

As always, please provide us with any feedback you might have and let us know if there is a topic that you'd like us t o cover in future newsletters .
Mark Katchen, CIH
Managing Principal 
The Phylmar Group, Inc.
Breaking Down the Department of Transportation's Emergency Response
Summary of article by Dean Blauser, EHS Today, December 22, 2015

The U.S. Department of Transportation's Emergency Response Guidebook (ERG) is an efficient and effective way for safety professionals to find initial information during an emergency incident.  Although the ERG is primarily intended for emergency responders, it is useful for safety professionals in a variety of industries.

The ERG is a tool for identifying material hazards and providing critical information about topics such as first aid, fire extinguishment, and evacuation distances to protect workers and the surrounding community.  It is also a great tool for proactively planning responses to the hazards associated at particular worksites.  The key to using the ERG is understanding how the guidebook works, and the process used to safely evaluate emergency incidents.  

Color-Coded Sections

The ERG has four color-coded sections for easy reference.  An expanded navigation flow chart will be included in the 2016 update. Here are the basics of what each color-coded section covers.

Yellow - The yellow section is based on the 4-digit UN number and allows the user to look up the physical name and corresponding guide number for the material in the section.

Blue - The blue section lists chemicals by name in alphabetical order.  The section also provides the cross reference to the guide number and UN number associated with the material.  Be sure to carefully match the spelling of the chemical name as there are often substances with similar spellings.

Orange - All other sections lead to the orange section, which provides the bulk of information on primary hazards and emergency response actions for a given substance.  This includes information on PPE, evacuation distances, spill control, fire control and first aid measures.

Green - Chemicals highlighted in green within the blue or yellow section indicates they are toxic inhalation materials, and specific initial isolation distance and protective action distance information is provided.  Keep in mind the location of the hazard can effect evacuation distances.

White - The white section in the front of the book contains specialized information that could be of interest to industry.  This includes information on rail cars, trailer identification, placards and pipeline information. The white section in the back provides information on explosives, boiling liquid expanding vapor explosions, and a glossary.
To read the complete article visit here.  

Administrative court sets precedent, allowing request for enterprise-wide hazard abatement by employer to proceed to trial
News Release, U.S. Department of Labor, December 23, 2015

Background:  An Administrative Law judge has decided that the Occupational Safety and Health Review Commission may have authority under the Occupational Safety and Health Act to order abatement measures sought by the U.S. Department of Labor's Occupational Safety and Health Administration beyond the specific violations OSHA identified in its the citations.

OSHA cited Central Transport LLC in November 2014 for 14 violations of workplace safety and health standards at the freight hauler's Billerica, Massachusetts, shipping terminal. A total of $330,800 in fines was proposed. Central Transport filed a notice of contest with the independent Occupational Safety and Health Review Commission in December of that year and litigation commenced.

In its complaint to the commission, the Labor Department alleged that Central Transport failed to comply with the OSHA standards for the safety of powered industrial trucks at locations other than the inspected worksite, and requested an order compelling Central Transport to comply with the powered industrial truck standard at all its locations. Central Transport then filed a motion asking the commission to strike the department's claim for enterprise-wide abatement, arguing that the Occupational Safety and Health Act does not permit it.

Central Transport LLC is a privately owned, full-service, asset-based transportation provider offering supply chain solutions across North America. The company provides regional; inter-regional and long-haul, less-than-truckload services; cross-docking; consolidation and pool distribution services, as well as customized value-added services. Based in Warren, Michigan, Central Transport operates nearly 200 customer service centers and facilities in 45 states and Canadian provinces.

Decision:  Administrative Law Judge Carol A. Baumerich denied Central Transport's motion, holding that the Occupational Safety and Health Act's provision authorizing the remedy of "other appropriate relief" provides the basis for allowing the department's claim for enterprise-wide abatement, at all locations where like violations exist, to proceed to trial. Judge Baumerich also denied Central Transport's request for a discovery and litigation stay of the claim for enterprise-wide abatement, finding that such a stay would jeopardize the litigation of the department's claim for enterprise-wide abatement. The full order can be viewed here.

Quote:  "Judge Baumerich's order is significant and precedent-setting. This is the first decision by an OSHA Administrative Law Judge expressly finding that the U.S. Occupational Safety and Health Review Commission may have the authority under the OSH Act to order abatement measures beyond the specific violations identified in the citations. The department is now authorized to proceed with discovery and to demonstrate, by presenting its evidence at trial, that enterprise-wide abatement is merited on the facts of this case," said Michael Felsen, the regional solicitor of labor for New England.

"When an employer has hazards occurring at multiple locations, common sense and reasonable worker protection law enforcement both dictate that the employer take corrective action to safeguard the health and well-being of employees at all its worksites," said Kim Stille, OSHA's regional administrator for New England.

The original inspection was conducted by OSHA's Andover Area Office. The case is being litigated for OSHA by attorney Scott Miller of the regional Office of the Solicitor in Boston.
To view the full court order visit here

Upcoming Events

Upcoming environmental, health, safety and sustainability events 

Safer Consumer Products Briefing, San Diego, CA, January 12, 2016

Bio-Based and Sustainable Products Summit, San Diego, CA, January 13-14, 2016

Biocides USA, Washington D.C., January 26-27, 2016
Global Business Summit: REACH and Global Supply Chains, Brussels, Belgium, February 22-25, 2016

Society of Toxicology Annual Meeting and ToxExpo, New Orleans, LA, March 13-17, 2016

ACGIH Fundamentals in Industrial Ventilation, Cincinnati, OH, April 4-8, 2016 
About The Phylmar Group, Inc.
The Phylmar GroupĀ® is an organization that partners with best-in-class companies on their most challenging environmental, health and safety, and social responsibility issues by working in a vertically integrated way from anticipating clients' needs from strategy to implementation. This is achieved through trusted expert client advisors who deliver innovative, responsible, efficient solutions addressing client needs and creating added value. For more information, visit or call 310.474.3937.

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