IHMM Today May 30, 2023

Associate Hazardous Materials Manager® [AHMM®] Launches

IHMM is pleased to announce, after more than 24 months of work, that the  Associate Hazardous Materials Manager® [AHMM®] credential has launched this Memorial Day.

There are 250,000 people who muster out of the U.S. Armed Services each year, the vast majority of whom have no degree and less than 3 years of experience in an MOS/AFCS – or military occupation. Until now, IHMM had no credential for any of these servicemen and women. Each year, thousands of people graduate with a degree in environmental engineering or other sciences, get their first job in the environmental field and thus have no experience, and IHMM has no credential for these people either.

Now, IHMM has the Associate Hazardous Materials Manager® [AHMM®] credential for military personnel with no degree and less than 3 years of experience, or recent college graduates with little or no experience, or Student CHMM® graduates, may apply for and take examinations.

The AHMM certification blueprint is here.

IHMM thanks the AHMM Scheme Committee > https://ihmm.org/ahmm-scheme-committee/ as he success of this project can be largely attributed to the passionate subject matter experts in their field who were fully engaged in the process, and committed to the mission of IHMM and the AHMM credential.  Thank you for volunteering your time, your expertise, and your passion!! All of the members hold the CHMM certification.

Ten subject matter experts (SMEs) serve on the AHMM Scheme Committee, working under the guidance of Nicola Areshenko, Chair, and Craig Dickensheets, Vice-Chair of the AHMM Scheme Committee, and M. Patricia Buley, IHMM’s Director of Certification and Accreditation.

The AHMM website is here > https://ihmm.org/ahmm/

ASSP Safety Conference and Exposition

Visit us at Booth #860!!

San Antonio, TX

June 5-7, 2023

IHMM Government Affairs – Needs You

IHMM is building volunteers for its Government Affairs Committee – open to all IHMM certificants. Anyone may join the committee on its website here >> https://ihmm.org/government-affairs-committee/

• Furthering the interests of certificants to secure government recognition of IHMM credentials

• Determine which state or federal regulatory actions to become involved with

• Determine which state or federal legislative activities to become involved with

The committee may be as busy as it chooses to be as IHMM certificants determine the number and scope of its activities in one of the most important areas in which we work both to secure recognition as well as to promote the strengths of our subject matter experts across the broad range of government policy making that affects us all.

SCOTUS Redefines the Bounds of the Clean Water Act with Its Decision in Sackett v. United States

In a decision that has been anticipated for months, the U.S. Supreme Court issued its opinion in Sackett v. United States, essentially rewriting jurisprudence established previously in Rapanos v. United States, 547 U.S. 715 (2006), and doing away with the “significant nexus” test adopted by the Court in that case for determining the jurisdictional reach of the term “waters of the United States” under the federal Clean Water Act (CWA or the Act).

Similar to Rapanos, where a divided Court in a 5-4 ruling found that wetlands, even if not physically connected to traditional navigable waters, are subject to the jurisdiction of the CWA where there is a significant nexus between the wetlands and the traditional navigable waters. The present Court, while agreeing unanimously that the wetlands in question were not “waters of the United States,” was again deeply divided, 5-4, as to the proper legal standard to apply in making the determination. The majority opinion, written by Justice Samuel Alito and joined by Justices Clarence Thomas, Neil Gorsuch, John Roberts, and Amy Coney Barrett, found that wetlands not connected physically to traditional navigable waters are not subject to the jurisdiction of the CWA. Borrowing heavily from Justice Antonin Scalia’s dissenting opinion in Rapanos, the Court found that to be considered “adjacent” wetlands and subject to the CWA, there must be a continuous surface connection that makes it difficult to determine where the water ends and the wetlands begin. The Court stated that “the CWA extends to only those wetlands that are ‘as a practical matter indistinguishable from waters of the United States.’”

The decision narrows the test for determining whether wetlands are subject to federal jurisdiction under the CWA and as a result reduces the scope of the Act and what waters fall within the jurisdiction of the U.S. Environmental Protection Agency and the U.S. Army Corps of Engineers, and it promises to have a significant impact upon ongoing litigation regarding multiple challenges to federal rules attempting to define “waters of the United States.”

In a concurring opinion written by Justice Brett Kavanaugh and joined by Justices Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson, these four justices agreed that the use of the “significant nexus” test from Rapanos for determining whether wetlands are covered under the Act was not proper, but they disagreed with how narrowly the majority would define wetlands subject to the CWA.

–Steptoe & Johnson

Here is the Supreme Court’s decision in Sackett v. United States

PHMSA – Development of Guidance on Potential Cascading Effects from Flammable Vapor Cloud Explosions

Pipeline Safety Research and Development Program

Development of Guidance on Potential Cascading Effects from Flammable Vapor Cloud Explosions

Objective: The overall objective of this research is to provide guidance on the potential cascading effects from flammable vapor cloud explosions (VCEs) and projectiles regarding structural damage at liquefied natural gas (LNG) facilities. In support of this objective, the following tasks are outlined:

• Identify the range of LNG facility types and configurations, with an emphasis on defining the explosion sources, flammable inventories, and the characteristics of targets.
• Assess the blast capacities of the targets.
• Define the VCE potential of the explosion sources and how this interacts with the targets.
• Develop guidance on the cascade potential that is sensitive to the characteristics of the type of LNG facility.

(Project page and final reporting are available: https://primis.phmsa.dot.gov/matrix/PrjHome.rdm?prj=923).

Meeting Information:

Wednesday, May 31, 2023, 12 p.m. to 1p.m. ET

Microsoft Teams Meeting and Calendar Invite:

https://teams.microsoft.com/l/meetup-join/19%3ameeting_ZjFlNGE5MzAtOGRlZS00ZjRhLWEzNWUtOWM0OTE3OTYyYThm%40thread.v2/0?context=%7b%22Tid%22%3a%22c4cd245b-44f0-4395-a1aa-3848d258f78b%22%2c%22Oid%22%3a%228733af19-b9ca-4250-bd5b-64f2e59d395c%22%7d

Agenda:

Welcome and PHMSA Introduction

Summary Slideshow of Project Results

Open Q&A and Discussion

Adjourn

Please contact Andrea Ceartin (406-577-6818 or [email protected]) with any questions

2022 TRI Reporting Deadline Is July 1, 2023 — What Is New This Year?

Each year about this time, companies are focused on the deadline to submit Toxics Release Inventory (TRI) data to the U.S. Environmental Protection Agency (EPA). This year is no different as the July 1, 2023, deadline is rapidly approaching. By this date, entities subject to the reporting requirement must submit data for activities that occurred during 2022. Companies are required to report if they meet chemical activity thresholds and are either in a covered industry sector and exceed the employee threshold; or are specifically required to report based on a determination by EPA under the Emergency Planning and Community Right-to-Know Act (EPCRA) Section 313(b)(2). EPA’s TRI Threshold Screening Tool can help companies determine if they are subject to TRI reporting. The tool uses a step-by-step questionnaire to help companies determine whether they meet or exceed the facility, employee, and chemical thresholds established by EPA. For more information, please read the full memorandum.

Read more >> https://www.lawbc.com/regulatory-developments/entry/2022-tri-reporting-deadline-is-july-1-2023-what-is-new-this-year

Methylene Chloride; Regulation Under the Toxic Substances Control Act (TSCA)

OSHA and NIOSH Update Handbook for Small Businesses

Self-inspection checklists for ergonomics, young workers, workplace violence and infection control have been added to the OSHA/NIOSH Small Business Safety and Health Handbook.

The revised handbook features checklists on a wide variety of topics, including electrical safety, emergency planning, fire safety, hazard communication, heat illness prevention, noise exposure and fall protection. It also details how to implement a safety and health program and the value of having a program in place.

“Employers that make job safety and health a real part of their everyday operations will benefit in the long run,” the handbook states. “Investing in a safety and health program now will help you avoid possible losses in the future. A safe business is a sound business.”

See the Small Business Handbook Here.

OSHA to Hold Public Meeting June 15 to Discuss Modernizing, Improving, Expanding its Voluntary Protection Programs

The U.S. Department of Labor’s Occupational Safety and Health Administration will hold a stakeholder meeting on Thursday, June 15 from 10 a.m. to 4:30 p.m. EDT, to discuss modernizing, improving and expanding the agency’s Voluntary Protection Programs. The public may attend the meeting in person in the Frances Perkins Building, U.S. Department of Labor, 200 Constitution Ave., NW, Washington, DC 20210. Register to attend in person or virtually at VPP Stakeholder Meeting Registration by June 1. Virtual attendees will only be in listening mode; questions and comment opportunities will not be available.

The agency seeks input from stakeholders, regardless of whether they have had direct, indirect and no involvement with VPP facilities, on questions such as the following:

• Are there leading indicators for measuring future performance of safety and health management systems?
• How can OSHA encourage more employers to apply to VPP?
• Aside from current customer experience surveys, how can OSHA solicit more frequent and timely feedback on the program?
• Beyond the OSHA Challenge, how can the agency increase the use of effective safety and health management systems by companies not in the VPP?
• How can OSHA improve the program’s quality or integrity?
• Given OSHA’s limited resources, how can the agency grow VPP more efficiently?
• In what ways, can safety and health consensus standards be used to create pathways for companies to participate in the VPP?

For more information, see the OSHA Trade Release.

• IHMM submitted comments to the OSHA request and can he read here

Beltway Buzz – Ogletree Deakins

Debt Ceiling Debate Deadlock. Over the years, the Buzz has bemoaned our elected officials’ penchant for brinksmanship, but the current situation is getting ridiculous. Once again, negotiations over raising the debt ceiling took center stage in Washington, D.C., this week. Like most disputes in life, it all comes down to money, with Republicans seeking less spending in the coming fiscal year, while Democrats insist on a “clean” bill to raise the debt ceiling. A deal remains elusive, and it is probably not great that the U.S. House of Representatives is scheduled to be out next week (though members will be instructed to return to D.C. within twenty-four hours if needed). According to the latest update from Treasury Secretary Janet Yellen, “it is highly likely that Treasury will no longer be able to satisfy all of the government’s obligations if Congress has not acted to raise or suspend the debt limit by early June, and potentially as early as June 1.”

EEOC Issues More Guidance on Use of Artificial Intelligence. Last week, the Buzz discussed the U.S. Congress’s nascent role in setting parameters for the use of artificial intelligence (AI) technology. Not to be outdone by Congress, late last week, the U.S. Equal Employment Opportunity Commission—which has already acknowledged such technology’s potential impact on discrimination law—issued a second guidance document on the subject. Specifically, the guidance document addresses how the use of “algorithmic decision-making tools” can have a disparate impact on applicants in a way that violates federal anti-discrimination law. EEOC cautions employers that they may be held responsible if their algorithmic tools discriminate against job candidates, even if the tools are designed or administered by outside vendors. Jennifer G. Betts, Danielle Ochs, and Zachary V. Zagger have the details. One thing to keep in mind as our regulators attempt to address the proliferation of AI in the workplace: Title VII of the Civil Rights Act of 1964 does not grant EEOC substantive rulemaking authority.

DOL Issues PUMP Act Guidance. On May 17, 2023, the U.S. Department of Labor’s (DOL) Wage and Hour Division issued a field assistance bulletin (FAB) providing guidance for agency officials who are enforcing the Providing Urgent Maternal Protections for Nursing Mothers Act (PUMP Act). The memo clarifies the following issues:

• Break time. DOL emphasizes that the “frequency, duration, and timing of breaks” to pump breast milk will vary depending on the employee and child, and that while a break schedule may be agreed to, the employer can’t implement a fixed schedule that does not work for the employee. Further, this “may need to be adjusted” as the employee’s needs change.
• Compensation. Unless otherwise required by law, employers are not required to compensate nonexempt employees who break to pump breast milk, but “[s]hort breaks, usually 20 minutes or less, provided by the employer must be counted as hours worked.” If the employee is not completely relieved of her duties while pumping, the time must be compensated.
• Space requirements. The PUMP Act requires employers to providing pumping employees with a non-bathroom space that is shielded from view and free from intrusion. DOL suggests a sign or lock for the space and notes that “[t]he location must be functional as a space for pumping.” This means the space must contain a chair and a table or counter, and ideally should have access to electricity and a sink nearby.

The memo also details the exemption for crewmembers of air carriers, the exemption for small employers that can demonstrate that compliance requires an undue hardship, the delayed application (beginning December 29, 2025) for rail carriers and motor coach services operators, and encourages employers to post an updated Fair Labor Standards Act (FLSA) poster.

House Committee Shines Light on NLRB Actions. On May 23, 2023, the House Subcommittee on Health, Employment, Labor, and Pensions held a hearing entitled, “Protecting Employees’ Rights: Ensuring Fair Elections at the NLRB.” During the hearing, Republicans and their witnesses focused on National Labor Relations Board (NLRB) General Counsel Jennifer Abruzzo’s April 2022 memo limiting employer speech, as well as her ongoing efforts to install a card check union representation process. In addressing this later issue, one witness wrote, “The failure to achieve legislative support for card check strongly suggests the Board lacks the power to enact it on its own.” On the other hand, a union lawyer testified in favor of limiting employer’s statutory rights to discuss the pros and cons of unionization with employees, advocated for electronic voting in union representation elections (which has been found to be prone to fraud and coercion), and encouraged Congress to pass the Protecting the Right to Organize (PRO) Act.

Bipartisan Immigration Bill Lands in House. This week, a bipartisan group of House members introduced the “Dignity for Immigrants while Guarding our Nation to Ignite and Deliver the American Dream Act of 2023” (DIGNIDAD (Dignity) Act of 2023) (H.R. 3599). The ambitious bill would overhaul the entire immigration system. Among other changes, the bill would:

• institute mandatory E-verify;
• only count the applicant (not spouse or children) toward the high-skilled visa cap;
• provide work authorization to H-1B spouses;
• staple an O visa to the diplomas of science, technology, engineering, and mathematics (STEM) Ph.D. graduates to allow them to work in the United States;
• provide funding to improve visa processing at U.S. Citizenship and Immigration Services (USCIS), the U.S. Department of State, and the Office of Foreign Labor Certification at DOL;
• codify the Flores settlement agreement regarding standards for the detention, treatment, and release of unaccompanied minors;
• establish five humanitarian campuses along the U.S. southern border and an additional five campuses in Latin America where asylum seekers will reside while their case is decided, ending “catch and release”;
• provide Dreamers and Deferred Action for Childhood Arrivals (DACA) recipients “with conditional permanent resident status for 10 years” and “an earned pathway to adjust to lawful permanent resident status”;
• provide a conditional program for undocumented immigrants to earn legal status through a series of background checks, restitution, payment of back taxes, etc.; and
• modernize the H-2A guest worker program by providing a year-round agricultural workforce and simplifying the wage and petition processes.

Of course, with a bill this sweeping, there are provisions that some groups are going to like and provisions that some groups aren’t going to like. The solution, of course, would be some type of legislative compromise, which is a tall order in our current political climate.

Professional Certification Coalition

IHMM is a member of the PCC. The PCC monitors state and federal legislative and regulatory activity affecting professional certification on an ongoing basis. The PCC has compiled several “Watchlists” identifying and analyzing provisions in pending legislation at both the state and federal level that, under applicable rules, may still be enacted in the current legislative session.  Depending on the carry-over rules in the relevant legislature, the charts listing current legislation may include bills introduced in a prior year.  In addition, the PCC compiles each year a chart of enacted legislation that affects certification. The charts include hyperlinks to every bill or executive order. Note that the Watchlist and the Enacted Legislation document do not include profession-specific legislation and do not include regulatory initiatives. The charts will be updated as needed based on new developments.

• 2022 Accomplishments and 2023 Priorities

Other State and Federal Activities

In this section we will highlight other state and federal government affairs activities undertaken by the committee.

Current Priorities April-June 2023

• PHMSA Recycled Plastics Policy – https://www.federalregister.gov/documents/2023/04/14/2023-07869/hazardous-materials-request-for-feedback-on-recycled-plastics-policy

• Ohio EPA Hazardous Waste Rules – https://epa.ohio.gov/about/media-center/events/public-hearing-HazWasteRules

• NY Department of Labor rulemaking concerning the recognition of the CSHM and CSMP. IHMM’s comments concerning initiating this rulemaking are here

• Work with Eric Vega in Puerto Rico concerning credential recognition

• Review of the Governor of Nevada’s Executive Order concerning licensing boards and potential for recognition of the CHMM. IHMM’s comments on the Governor’s Executive Order are here

• Scheduling meetings with the Maryland Congressional delegation concerning the Certified Pandemic Preparedness Specialist [CPPS] credential

IHMM Credential Recognition

The highest priority of IHMM’s Government Affairs Committee is the recognition of IHMM’s credentials by government. We have made substantial progress in the two years we have undertaken this endeavor, as outlined in detail here > https://ihmm.org/credential-recognition/

In this project we have 45-in-5, increasing the number of states that recognize IHMM credentials.

• We have already succeeded in 13 states – New York, Connecticut, Pennsylvania, Indiana, California, Colorado, Nebraska, Minnesota, Arkansas, Oklahoma. Ohio, North Dakota, and Georgia. [Red states in the map above]. These are states where IHMM credentials are cited or 40 CFR 312.10 is cited by reference.
• We have partially succeeded in another 16 states – Alaska, Hawaii, Idaho, Montana, Arizona, Kansas, Iowa, Missouri, Illinois, Kentucky, Florida, Delaware, Rhode Island, Massachusetts, Vermont, and Maine. [Orange/Black Stripe states in the map above] These are states where the requirements of an “environmental professional” or QEP are cited that coincide with an IHMM credential so that relatively little work would need to be done to clarify the desired outcome.
• We have 21 states where no reference to an IHMM credential is made in either statute or regulation, nor is there anything defined in the area of an environmental professional. These states will require legislation or regulatory work. [Yellow states in the map above].

in January 2022 Gene Guilford released the 40 CFR § 312.10 EPA regulation that states a private certification that meets or exceeds the requirements of the regulation is an Environmental Professional under the regulation. Here is the crosswalk between the 40 CFR § 312.10 EPA regulation and the Certified Hazardous Materials Manager [CHMM] blueprint. The CHMM meets or exceeds the requirements of an Environmental Professional. 

Here’s what we ask each volunteer to do:

• Watch legislative and regulatory developments in your state that provide an opportunity for us to create amendments or other interventions
• Be willing to speak with regulators and legislators in your area about the recognition efforts we craft together

Regulatory Updates

Notice of Public Meetings in 2023 for International Standards on the Transport of Dangerous Goods

PHMSA’s Office of Hazardous Materials Safety will be hosting public forums in advance of four international meetings, to allow the public to give input on current proposals being considered by the International Civil Aviation Organization’s (ICAO) Dangerous Goods Panel (DGP) and the United Nations Sub-Committee of Experts on the Transport of Dangerous Goods (UNSCOE TDG). The international meetings include:

• The 62nd session of the UNSCOE TDG, scheduled for July 3 to July 7, 2023, in Geneva, Switzerland
• The 29th session of the ICAO TDG, scheduled for November 13 to 17, 2023, in Montreal, Canada
• The 63rd session of the UNSCOE TDG, scheduled for November 27 to December 6, 2023, in Geneva, Switzerland

Each of these public meetings will be held approximately two weeks before the corresponding international meeting. Specific information for each meeting, including date, time, conference call-in number, and details for advance registration will be posted when available on the PHMSA website under “Upcoming Events.” These meetings will be virtual, with hybrid options available as possible, pending public health guidelines.

The Federal Register announcement can be found here.

IHMM CONFERENCES FOR 2023

IHMM will attend and support a number of conferences and trade shows throughout 2023, virtually as well as in-person as resources allow. Below are some of the conferences IHMM will support in 2023.

Are there conferences you believe IHMM should attend that do not appear here? If so, let us know by sending an email to [email protected]

CUHMMC 41st Annual Conference

Oregon State University, Corvalis, Oregon

August 6-11, 2023

AHMP 36th Annual Conference

Omaha, NE

August 27-30, 2023

National Safety Council Congress & Expo

New Orleans, LA

October 23-25, 2023

FET Annual Conference

Milwaukee Marriott West

October 31-Nov 2, 2023