Seyfarth Synopsis: A railcar cleaning company and its executive officers were recently charged in a 22-count indictment with conspiracy, violating worker safety standards resulting in worker deaths, violating the Resource Conservation and Recovery Act (RCRA), and for submitting false documents to a federal agency.
Nebraska Railcar Cleaning Services LLC (NRCS) employees sent workers in to railcars to scrape and remove various commodities from tanker cars, including gasoline, ethanol, petroleum by-products, pesticides, herbicides, and food grade products. Two of the company's workers were killed and a third was injured when the contents of a railcar ignited while being cleaned. According to the indictment, the company, NRCS and its owners and executives, allegedly failed to implement worker safety standards and then tried to cover that up during an Occupational Safety and Health Administration (OSHA) inspection. The defendants also allegedly mishandled hazardous wastes removed from rail tanker cars during the cleaning process.
OSHA requires employers to test air in confined spaces such as rail tanker cars for hazardous gases prior to allowing employees to enter the confined workspace, and to provide employees exposed to certain chemicals with respirators for which they must be assessed and fit tested. EPA requires facilities like NRCS to ensure that hazardous wastes generated are properly treated and disposed of.
The indictment alleges that after a 2013 inspection of NRCS, the company represented that NRCS had been testing for hazardous wastes, including benzene, since July 2014. After OSHA returned to NRCS in March 2015 to conduct a follow-up inspection and was turned away, documents were "created" and submitted to OSHA to "falsely show" that NRCS had been purchasing equipment to test the contents of railcars for benzene and had taken other required safety precautions. In addition, "during inspections by the Nebraska Department of Environmental Quality and the U.S. Environmental Protection Agency in 2013 and 2014 respectively, NRCS was informed that it was required to test its wastes to determine if they were hazardous in order to properly dispose of them, rather than send all untested waste to a landfill not permitted to receive hazardous waste." The indictment alleges that was not done before April 2015.
In April 2015, the contents of a railcar ignited while being cleaned by NRCS employees. Two employees were killed and a third was injured. Two days after the explosion, NRCS had three railcars tested to assess whether their contents were hazardous, and two were determined to be hazardous.
This indictment presents a good example of what not to do when dealing with OSHA and environmental agency inspectors. First, if the employer represents that it is implementing certain safety measures — do it! Secondly, the case serves as a reminder of the importance of providing complete and accurate submittals to government entities. A deliberate falsification can have serious ramifications, both by way of civil penalties and criminal prosecution. As everyone has learned through countless infamous cases, it's not the crime but the cover-up that will really come back to bite the employer.
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