Food Safety Magazine

FSM eDigest | December 3, 2013

Don’t Look Now: OSHA and EPA Regulations Affect Food Safety

By Bruce Smith

Don’t Look Now: OSHA and EPA Regulations Affect Food Safety

President Richard Nixon in 1970 helped establish the Occupational Safety and Health Administration (OSHA). As a result, worker safety became a federal responsibility with regional and area offices located throughout the United States. By comparison, the Environmental Protection Agency (EPA), another Nixon creation, has been empowered to impose herculean sanctions, fines and penalties on employers and facilities for violation of environmental laws and regulations.

Not every OSHA violation qualifies as an EPA violation. It is a fact, however, that OSHA inspectors have been trained to look for environmental violations during any facility inspection; these violations can often have injurious effects on food safety as well. The hazardous chemical industry and manufacturing facilities that store and handle hazardous chemicals have especially felt the “bite” of joint enforcement between U.S. Department of Justice (DOJ), EPA and OSHA in recent years. Under federal law, hazardous chemical program compliance is regulated by both the EPA (Risk Management Plan, RMP) and OSHA (Process Safety Management, PSM). In many respects RMP and PSM are the same regulations. To be in violation of PSM likely means a facility is also violating RMP regulations and vice versa.

Such violations can impact food processing, as noted by some interesting examples:

Hershey
Beginning in 2008, a plea agreement and criminal prosecution for failure to develop and implement EPA Clean Air Act RMP requirements resulted in a $100,000 fine. OSHA had inspected a family-owned Pennsylvania ice cream manufacturer and distributor, Hershey.  OSHA found the factory’s PSM program lacking and the company had failed to implement program upgrades to bring itself into compliance. Such hazards can have consequences on the proper environmental hygiene and sanitation of the food plant. The company was also alleged to be unresponsive to EPA information requests. While no chemical release incident occurred that prompted enforcement, the matter was referred to DOJ for criminal enforcement. The triad of coordinated agency enforcement between OSHA, EPA and DOJ is believed to be the first PSM/RMP related enforcement action utilizing the Worker Endangerment Initiative.

Tyson Foods
Tyson Foods Inc. entered into a plea agreement on January 9, 2009, and pleaded guilty in U.S. District Court in Arkansas agreeing to pay the maximum fine ($500,000) for willfully violating worker safety regulations that led to a worker’s death in its River Valley Animal Foods plant in Texarkana, AR. The investigation was conducted by the Department of Labor and prosecuted by the Justice Department’s Environmental Crimes Section and the U.S. Attorney’s Office for the Western District of Arkansas under the Environmental Crimes Section’s Worker Endangerment Initiative.

A Tyson employee was overcome by hydrogen sulfide gas, a hazardous chemical by-product produced from the rendering of chicken feathers. Possible contamination of product was also likely. Despite the fact this incident was investigated by OSHA and treated as an employee workplace safety violation, the Environmental Crimes Section of the DOJ took the lead to enhance punishment and penalties against Tyson. The fatality was a repeat violation involving the same facility and rendering processes that resulted in the death of an employee 1 year earlier. The aggravating circumstances arguably justified coordinated enforcement under the Worker Endangerment Initiative.

Beef Products
In April, 2013, the EPA announced a settlement stemming from a 2007 incident at the now-closed Waterloo, IA, Beef Products meat processing facility that released more than 1,000 pounds of anhydrous ammonia into a production area occupied by company workers. The anhydrous ammonia trapped two employees resulting in the permanent disability of one worker and the death of the other. During the response to the release, management directed its employees to enter the facility while dangerous levels of airborne anhydrous ammonia remained present. Such a chemical also poses a potential hazard to the proper contamination control of the products processed in the plant. After the 2007 incident, EPA gathered information about the release and facility operations through information requests and an inspection. Based on these activities, EPA determined that Beef Products did have a risk management program on paper, but failed to implement the program at the Waterloo facility, contributing to the 2007 incident.

The implementation of a risk management program is integral to the safe operation of facilities where anhydrous ammonia is used,” Regional Administrator Karl Brooks said. “The 2007 incident in Waterloo demonstrates that having a plan only on paper increases the risk of accidental exposure to both employees and first responders.”

The company had first been cited by Iowa OSHA for various safety violations concerning the ammonia release and fatality that included PSM violations. The matter was subsequently referred by OSHA to EPA Region VII for further enforcement. The matter became a coordinated enforcement action which included the DOJ utilizing the Worker Endangerment Initiative guidelines.

Conclusions
Environmental hazards, such as the ones described above, can impact the safety of the food products processed in food plants. Following OSHA and EPA regulations are thus imperative for the safety of food and should be incorporated into a plant’s food safety management plan.

Bruce Smith is a Nebraska licensed attorney who specializes in environmental, health and safety law working out of the Goosmann Law Office, Sioux City, IA.