SAFETY & COMPLIANCE NEWS
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Copyright 2025 J. J. Keller & Associate, Inc. For re-use options please contact copyright@jjkeller.com or call 800-558-5011.
FEATURED NEWS
2025-04-25T05:00:00Z
NewsIndustry NewsEnforcement and Audits - OSHAEnforcement and Audits - OSHASafety & HealthConstruction SafetyGeneral Industry SafetyIn-Depth ArticleEnglishFocus AreaUSA
Reviewing the foundation of OSHA’s authority
Recently, some news sources covered potential legal challenges on whether OSHA is Constitutional. Regardless of your opinions on the merit of such claims, it’s worth looking at the source of OSHA’s authority.
After more than two decades of working in regulatory compliance, I came across the standard outlining the basis for OSHA’s authority. I should clarify that J. J. Keller & Associates, Inc., does not offer opinions on whether a federal standard is good or bad; we only explain how it impacts employers. Still, I find the authority description a bit surprising.
Check the standard
Congress passed the OSH Act of 1970, from which OSHA derives its authority. The regulation at 29 CFR 1975.2, Basis of authority, cites a number of Supreme Court cases. That standard notes that the Commerce Clause of the Constitution grants Congress the power “to regulate Commerce with foreign Nations, and among the several States.” This is commonly known as the interstate commerce clause.
Citing various Supreme Court cases, that section says that Congress may “regulate conditions or activities which affect commerce even though the activity or condition may itself not be commerce and may be purely intrastate in character” (emphasis added). To me, it seems odd that the power to regulate “interstate commerce” includes the power to regulate activities that are neither commerce nor interstate. The cases cited, however, adopted the “affects commerce” interpretation to expand the reach of federal authority.
One such case is Wickard v. Filburn (1942) in which the Supreme Court held that a farmer who grew wheat to feed his own livestock was engaged in activity that affected interstate commerce. Therefore, that activity could be subject to federal regulation, and the farmer had to pay a penalty for growing too much wheat. The reasoning was that, if he had not grown the extra wheat, he’d have to buy wheat on the market. His action therefore “affected” commerce.
What can Congress regulate?
Finally, the above regulation says, “it is not necessary to prove that any particular intrastate activity affects commerce, if the activity is included in a class of activities which Congress intended to regulate because the class affects commerce.” Further, “the class of activities which Congress may regulate under the commerce power may be as broad and as inclusive as Congress intends.”
That implies Congress need not prove whether an activity even affects commerce. As long as Congress intends to regulate something, it can do so.
All of this becomes relevant when evaluating any legal challenges to OSHA’s authority (or to other federal agencies, for that matter). It seems to me that the Supreme Court would need to overturn or significantly narrow decisions like Wickard in order to uphold any such challenges. I’m not speculating on whether that would happen, or if the matter would even come before the Supreme Court. But if the high court overturned those decisions, the implications would be enormous for all federal agencies.
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RECENT INDUSTRY HIGHLIGHTS
2025-04-25T05:00:00Z
NewsIndustry NewsIndustry NewsDiscriminationTitle VII (The Civil Rights Act of 1964)DiscriminationProtected classesAssociate Benefits & CompensationAssociate RelationsHR GeneralistHR ManagementEnglishFocus AreaHuman ResourcesUSA
New executive order aims to stop one type of discrimination claim
On April 23, President Donald Trump issued an executive order introducing a policy to “eliminate the use of disparate-impact liability in all contexts to the maximum degree possible.”
Disparate impact means indirect discrimination. Discrimination liability cases called “disparate impact” cases involve company policies or procedures that are neutral on their face but have an adverse impact on a protected group. Examples could involve unnecessarily high educational requirements, intended to screen out a larger number of a protected class, or an unduly harsh physical requirement, intended to disqualify a larger number of females. In such cases, the employer must demonstrate the business necessity for the requirement to avoid liability.
Title VII of the Civil Rights Act of 1964 prohibits employment practices that discriminate because of race, color, religion, sex, or national origin. A 1991 amendment to Title VII made disparate-impact discrimination illegal.
The executive order, titled “Restoring Equality of Opportunity and Meritocracy” says “a near insurmountable presumption of unlawful discrimination exists where there are any differences in outcomes in certain circumstances among different races, sexes, or similar groups, even if there is no facially discriminatory policy or practice or discriminatory intent involved, and even if everyone has an equal opportunity to succeed.”
It goes on to say, “Disparate-impact liability all but requires individuals and businesses to consider race and engage in racial balancing to avoid potentially crippling legal liability.”
While this executive order does not repeal Title VII or its disparate-impact amendment, it will likely have the effect of limiting how federal agencies — especially the Equal Employment Opportunity Commission — handle discrimination charges.
Disparate-impact liability charges can still be filed, however, to comply with this executive order, the agency will not pursue these charges.
What does this mean for employers
While disparate-impact liability cases will likely cease to be heard at the federal level, private lawsuits can still be filed. In addition, state agencies may continue investigating disparate-impact charges under state laws. Therefore, employers should avoid hiring and promotion practices that have an adverse effect on any protected group.
Court challenges to this executive order are likely to follow since Title VII and its disparate-impact amendment are still in place.
Key to remember: To comply with this latest executive order, federal agencies will likely stop pursuing disparate-impact discrimination charges. Claims can still be brought privately, and by state agencies.
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2025-04-24T05:00:00Z
NewsIndustry NewsSafety & HealthGeneral Industry SafetyHearing Conservation and NoiseIndustrial HygieneOccupational Safety and Health Administration (OSHA), DOLIn-Depth ArticleEnglishFocus AreaUSA
Hearing conservation: The difference between “noise” and “sound”
Hearing conservation is all about keeping your ears safe at work, especially in industries or jobs where there's a lot of noise.... or is it sound? Preventing hearing loss before it starts and preserving the hearing you have requires understanding the difference between noise and sound.
Simply put, sound is what we hear while noise is unwanted, unpleasant, or harmful sound. Prolonged exposure to noise, particularly at high decibel levels, can lead to hearing loss which can be permanent and debilitating. Industries that are especially susceptible to harmful noise include construction, manufacturing, forestry, transportation, and entertainment.
Interpreting the OSHA standard
Workers who are exposed to noise at or above determined limits are at risk of developing significant and permanent hearing loss over their work life if they are not adequately protected. OSHA’s occupational noise standard, 1910.95, has established two levels of exposure, averaged over an 8-hour time period, at which employers must take steps to protect workers.
- Action level (AL) – at or above 85 dB or an equivalent of 50% dose, employers must:
- Implement a hearing conservation program that includes noise monitoring;
- Provide annual audiograms and appropriate follow-ups for exposed workers;
- Enforce use of hearing protective devices (HPDs) when engineering or administrative controls are not sufficient to reduce exposure to acceptable limits; and
- Deliver effective annual employee training.
- Permissible exposure level (PEL) – at or above 90 dB or an equivalent 100% dose, employers must:
- Implement engineering or administrative controls to reduce noise exposure;
- Enforce the use of HPDs when engineering or administrative controls are not sufficient to reduce exposure to acceptable limits; and
- Evaluate noise regularly to determine when ALs may require further action.
Here is a quick tip! If you need to raise your voice to speak to someone only 3 feet away, it’s likely the noise level is over OSHA’s action level of 85 decibels.
Understanding the parameters of sound
Noise is considered hazardous based on how loud the sound is, how long it lasts, and how often the exposure is. For hearing conservation, noise monitoring factors in these measurements:
- Frequency – the “pitch” of sound, measured in Hertz (Hz) and representing the number of sound waves passing a particular point per second. The higher the frequency, the higher the pitch as with a high-pitched whistle.
- Amplitude – the loudness or intensity of sounds, measured in decibels (dB). The larger the amplitude, the louder the sound as with speakers at a concert.
- Time – the duration of sound, or how long it lasts. Keep in mind that at both long-lasting and short duration, high amplitude sounds can be damaging to your hearing.
Identifying types of sound
For proper hearing protection, employers must account for several different noise types including:
- Continuous – noise that lasts for more than one second and is stable over time. The hum of an air conditioner or fan is an example of continuous noise.
- Intermittent – noise that cycles on and off with quiet periods in between. Intermittent noise may include a pump or generator kicking on or off as needed, an airplane flying overhead, and many manufacturing noises.
- Impulse – noise created by the collision of two masses with a duration of less than one second. Common examples of impulse noise include alarm systems, jackhammers, or punch presses.
- Impact – noise with an amplitude over 130 dB that has a sharp rise and rapid decline. Gunshots, explosions, and popping balloons are examples of impact noise.
By understanding the parameters of sound, including its intensity, frequency, and the three types - intermittent, continuous, and impulse - we can better manage noise exposure and protect our hearing.
Keys to remember: Sound is what we hear; noise is harmful or unpleasant sounds. Understanding sound types, intensities, and frequencies helps protect and preserve hearing now and into the future.
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2025-04-24T05:00:00Z
NewsIndustry NewsIndustry NewsFleet SafetySpeed limitsAnnual inspections - Motor CarrierDefensive drivingCMV drivingFocus AreaUSAEnglishTransportationCMV Inspections
Drive like someone’s watching — because they are!
Time to look alive, drivers! Operation Safe Driver Week will run from July 13-19 this year, with a focus on reckless, careless, and dangerous driving. Officers in Mexico, Canada, and the U.S. will be looking out for commercial drivers’ unsafe driving habits — don’t be one of the offenders!
During last year’s initiative, officers in Canada and the U.S. pulled over 11,050 vehicles, issued 2,712 tickets and citations, and gave 3,228 warnings to both commercial and passenger vehicle drivers. Research shows that these interactions have had a positive impact on safe driver rates over time.
What do drivers need to know?
The Commercial Vehicle Safety Alliance (CVSA) runs Operation Safe Driver Week every summer to help encourage safe driver practices and improve road safety for everyone. Law enforcement personnel are looking for:
- Speeding,
- Following too closely,
- Drunk driving,
- Drugged driving,
- Distracting driving, and
- Other unsafe driving habits.
Drivers who engage in these types of behaviors will be pulled over and issued a warning or citation. Any person who drives a vehicle with clear disregard for safety is considered a reckless driver. All drivers must operate with due care and attention, and with reasonable consideration for everyone else on the road.
Why Operation Safe Driver Week matters
Data from the U.S. National Highway Traffic Safety Administration revealed that 42,514 people were killed in traffic crashes during 2022. Also in 2022, Canadian statistics reveal 1,931 motor fatalities, while Mexico statistics report 15,979 road deaths.
The goal of Operation Safe Driver Week is to address and reduce these rates by improving awareness. To boost these efforts, CVSA also offers other driver education initiatives to bring more attention and information to their cause.
CVSA will be offering:
- Resources for teen drivers and new drivers,
- Resources for commercial motor vehicle drivers,
- Public service announcements, and
- Postcards available in French, English, and Spanish.
To find more information about CVSA’s Operation Safe Driver Week initiatives, visit Operation Safe Driver - CVSA – Commercial Vehicle Safety Alliance
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2025-04-24T05:00:00Z
NewsTransportationBusiness planning - Motor CarrierIn-Depth ArticleRegistrationEnglishEnforcement - DOTRoadside InspectionsBusiness planning - Motor CarrierCMV InspectionsIndustry NewsFederal Motor Carrier Safety RegulationsBusiness policies and procedures - Motor CarrierFocus AreaDaily vehicle inspectionsFleet OperationsIntermodal equipmentUSA
Take charge of collaboration: Optimize drop and hook freight with partner carriers
When carriers operate other carriers’ trailers for drop and hook freight deliveries, it is vital to understand the shared responsibilities involved. Drivers must conduct thorough inspections of the trailers to ensure safety and compliance with regulations. Additionally, financial responsibilities, including repair costs and maintenance, must be clearly defined and agreed upon to avoid disputes and ensure smooth operations.
I am just hauling it. We don’t own the trailer.
The regulations state that, before a driver can operate a motor vehicle, they must be satisfied that the vehicle is in safe operating condition. Drivers are the “boots on the ground” and see what no one else can. Law enforcement officers agree that a high percentage of violations come from trailers used in drop and hook operations. These trailers are often owned by a different carrier than the one hauling the freight. When the violations are discovered, drivers are often surprised that inspecting the trailer is their responsibility when their company doesn’t own the trailer. Drivers often respond with things like:
- It isn’t our trailer,
- We don’t have to inspect it or,
- I cannot make the other carrier fix the trailer.
Whose responsibility is it?
Since the driver is making delivery of the trailer to the next destination, they are responsible for ensuring it is safe. Before connecting to a trailer, the driver should inspect the trailer. If it is not safe for the road, the defect(s) must be reported and repaired before the trailer can move. It is likely that the driver will report the defect to the carrier they work for. That carrier will coordinate with the owner of the trailer to have the repairs made or change the load. Common defects found are:
- Flat tires,
- Tires with excessive tread wear,
- Expired or no proof of periodic inspection,
- Air leaks, and
- Inoperable lights (inoperable turn signals on the rear of trailers is an out of service violation).
Who is going to pay for this?
When a defect is found it must be repaired before the load is hauled. The owner of the trailer is responsible for the repair. The agreement between the carriers may allow for the carrier hauling the load to pay for the repair and be reimbursed. This could expedite the repair, but should only be done if the agreement allows for it. Taking action without prior approval could result in denial of payment. If the owner will not make the repairs the load should be refused.
Who gets the ticket?
The driver is responsible for the safe operation of the vehicle. If a violation is found and a citation issued, the driver is responsible. If a fine is issued the driver will need to pay the fine. CSA points will be assessed to the carrier and driver hauling the load. The carrier who owns the trailer cannot be held responsible for violations they are not made aware of.
Key to remember: When it comes to drop and hook trailer operations, working together to have repairs made when defects are found reduces downtime and increases on-time deliveries.
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2025-04-24T05:00:00Z
NewsIndustry NewsUnderground Storage TanksWaste/HazWasteEnvironmental Protection Agency (EPA)EnvironmentalIn-Depth ArticleFocus AreaEnglishRelease DetectionTank SystemsTank SystemsUSA
UST release detection equipment: Testing 1, 2, 3
The next time you’re at a service station, consider the fact that you’re standing above underground tanks holding the fuel that you’re pumping into your vehicle. This brings up an important question about any underground tank: Since you can’t see the tank, how do you know if it starts to leak? The answer is a release detection system.
The Environmental Protection Agency (EPA) requires that all regulated underground storage tanks (USTs) have release detection systems and that owners and operators of USTs test the equipment annually to ensure it operates correctly.
Let’s look at three aspects of release detection equipment testing: how to conduct testing, what to test for, and what to record.
1. How do I test the equipment?
UST owners and operators may conduct release detection equipment testing according to:
- The manufacturer’s instructions,
- Industry codes and standards, or
- The implementing agency’s requirements.
Manufacturer’s instructions
Each piece of release detection equipment should have an associated manual or guide for owners to reference. The manual or guide will explain how to test the equipment.
Tip: Most equipment manufacturers provide online versions of their product manuals and guides, which you can likely find on the manufacturer’s website. If you can’t find guidance, contact the manufacturer directly.
Industry codes and standards
EPA’s regulations stipulate that UST owners and operators who follow industry codes and standards must choose ones developed by a nationally recognized association (like ASTM International or the Petroleum Equipment Institute (PEI)) or an independent testing laboratory.
For instance, the agency states at 280.40(a)(3) that UST owners and operators may use PEI/RP1200, Recommended Practices for the Testing and Verification of Spill, Overfill, Leak Detection and Secondary Containment Equipment at UST Facilities, to comply.
Implementing agency requirements
EPA’s rules for testing release detection equipment serve as the minimum standards. Most state regulatory agencies implement UST programs and may impose stricter or additional requirements. Plus, local regulations may apply.
Check state and local rules to ensure your UST complies with the right requirements.
2. What do I test?
At a minimum, UST owners and operators must test the following factors that apply to their release detection systems.
- Automatic tank gauges and other controllers: Test the alarms and battery backups. Verify the system’s configuration.
- Probes and sensors: Test alarm functionality and communication with the controller. Inspect the probes and sensors for residual buildup. Ensure that the floats move freely, the cables have no kinks or breaks, and the shaft isn’t damaged.
- Automatic line leak detectors: Simulate a leak to determine whether the detector meets the operation requirements of 280.44(a).
- Vacuum pumps and pressure gauges: Confirm correct communication with the sensors and controller.
- Handheld electronic groundwater and vapor sampling equipment: Ensure the monitoring equipment operates properly.
3. What records do I have to keep?
The regulation at 280.45(b)(1) mandates that UST owners and operators keep records of the annual release detection equipment testing results for at least three years.
For each annual testing record, list:
- Each device tested,
- If the devices operated according to 280.40(a)(3) or had issues that needed attention, and
- Any corrective actions applied.
Why is release detection equipment testing so important?
Petroleum and other hazardous substances that leak from USTs can endanger human and environmental health. A leaking UST’s primary threat is groundwater contamination. Groundwater supplies drinking water for almost half of Americans.
A release detection system enables a facility to respond sooner to accidental releases and, therefore, limit potential harmful impacts — only if the equipment used for the system operates properly.
Testing your UST’s release detection equipment is vital because it allows you to identify which components function accurately and which parts have problems that need correction. A well-functioning release detection system can help your facility:
- Maintain regulatory compliance (and avoid enforcement actions like penalties for noncompliance),
- Identify opportunities to upgrade existing equipment to improve operational efficiency, and
- Protect your employees and the community in which your facility operates.
Key to remember: EPA requires facilities to test the release detection equipment used on underground storage tanks each year to make sure it operates properly.
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Copyright 2025 J. J. Keller & Associate, Inc. For re-use options please contact copyright@jjkeller.com or call 800-558-5011.