IHMM Today June 27, 2023

National Oil and Hazardous Substances Pollution Contingency Plan; Product Schedule Listing and Authorization of Use Requirements

The Environmental Protection Agency (EPA or the Agency) is amending the requirements in Subpart J of the National Oil and Hazardous Substances Pollution Contingency Plan (NCP) that govern the use of dispersants, other chemicals and other spill mitigating substances when responding to oil discharges into jurisdictional waters of the United States. This action addresses the efficacy and toxicity of dispersants and other chemical and biological agents, as well as public, state, local, and federal officials’ concerns regarding their use. Specifically, the Agency is amending the Subpart J regulatory requirements for the NCP Product Schedule in two distinct ways. First, the Agency is adding new listing criteria, revising the efficacy and toxicity testing protocols, and clarifying the evaluation criteria for removing products from the NCP Product Schedule. Second, the Agency is amending requirements for the authorities, notifications, and data reporting when using chemical or biological agents in response to oil discharges to Clean Water Act (CWA) section 311 jurisdictional waters and adjoining shorelines. These requirements are anticipated to encourage the development of safer and more effective spill mitigating products and better target the use of these products to reduce the risks of oil discharges and response technologies to human health and the environment. Further, the amendments are intended to ensure that On-Scene Coordinators (OSCs), Regional Response Teams (RRTs), and Area Committees (ACs) have sufficient information to support agent authorization of use decisions.

DATES:

This final rule is effective on December 11, 2023.

ADDRESSES:

The EPA has established a docket for this action under Docket ID No. EPA–HQ–OPA–2006–0090. All documents in the docket are listed on the http://www.regulations.gov website. Although listed in the index, some information is not publicly available, e.g., CBI or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the internet and will be publicly available only in hard copy form. Publicly available docket materials are available electronically through http://www.regulations.gov.

FOR FURTHER INFORMATION CONTACT:

For general information, contact the Superfund, TRI, EPCRA, RMP, and Oil Information Center at 800–424–9346 or TDD at 800–553–7672 (hearing impaired). In the Washington, DC metropolitan area, contact the Superfund, TRI, EPCRA, RMP, and Oil Information Center at 703–412–9810 or TDD 703–412–3323. For more detailed information on this final rule contact Gregory Wilson at 202–564–7989 ( [email protected]) or Vanessa Principe at 202–564–7913 ( [email protected]). The contact address is U.S. Environmental Protection Agency, Office of Emergency Management, Regulations Implementation Division, 1200 Pennsylvania Avenue NW, Washington, DC 20460–0002, Mail Code 5104A, or visit the Office of Emergency Management website at http://www.epa.gov/​oem/​.

EPA Updates TSCA CBI Requirements

The U.S. Environmental Protection Agency (EPA) published on June 7, 2023, a final rule with new and amended requirements concerning the assertion and treatment of confidential business information (CBI) claims for information reported to or otherwise obtained by EPA under the Toxic Substances Control Act (TSCA). 88 Fe d. Reg. 37155. The final rule notes that amendments to TSCA in 2016 included many new provisions concerning the assertion, EPA review, and treatment of confidentiality claims. The final rule includes procedures for submitting such claims in TSCA submissions. It addresses issues such as substantiation requirements, exemptions, electronic reporting enhancements (including expanding electronic reporting requirements), maintenance or withdrawal of confidentiality claims, and provisions in current rules that are inconsistent with amended TSCA. The rule also addresses EPA procedures for reviewing and communicating with TSCA submitters about confidentiality claims. The final rule will be effective August 7, 2023. For a more in-depth review of the final rule and our insightful commentary, please read the full memorandum.

Read more >> https://www.lawbc.com/regulatory-developments/entry/epa-updates-tsca-cbi-requirements

US Department of Labor Invites Small Business Owners, Local Governments to Share Input on Potential Heat Standard

The Occupational Safety and Health Administration (OSHA) invites small business owners and representatives from local government entities to join a series of upcoming discussions on the potential impacts of a workplace heat standard on small businesses.

Currently, OSHA is developing a potential standard for workplaces — in which the agency has jurisdiction — to prevent heat illness and injury in outdoor and indoor environments in general industry and in the construction, maritime and agriculture industries. As part of its process, OSHA is holding Small Business Advocacy Review Panel meetings to gather views on the potential effects of a heat standard on small businesses. The meetings will be held in teleconferences where small businesses can share concerns and discuss current practices for protecting their employees from heat-related illnesses and injuries. The discussions will be open to the public.

In October 2021, OSHA published an Advance Notice of Proposed Rulemaking for Heat Injury and Illness Prevention in Outdoor and Indoor Work Settings in the Federal Register, initiating the rulemaking for OSHA to consider a heat-specific workplace standard. OSHA has also taken several actions to protect workers from the dangers of excess heat in the workplace, including:

• Developing an enforcement initiative on heat-related hazards.
• Launching a National Emphasis Program on heat inspections.
• Creating a National Advisory Committee on Occupational Safety and Health Heat Injury and Illness Prevention Work Group.
• Launching a Heat Illness Prevention campaign to educate employers and workers on the dangers of working in the heat.

For more information, please see the OSHA Trade Release.

OSHA Seeks Feedback on Effectiveness of Leading Indicators to Improve, Develop Resource Tool

The U.S. Department of Labor’s Occupational Safety and Health Administration is asking for stakeholder input on their current use of leading indicators and their impact on managing their safety and health management systems. Leading indicators are proactive and preventive measures that can provide insight on the effectiveness of safety and health activities and reveal potential problems. They are vital in reducing worker fatalities, injuries, illnesses, and financial impacts.

As OSHA considers developing a Leading Indicators Resource, the agency welcomes stakeholders to share their experience and expertise and provide detailed feedback on how/where they are used at their workplace. OSHA is interested in various perspectives on stakeholders’ answers to questions, such as the following:

• What leading indicators do you use?
• What lagging indicators do you use (OSHA incident rates, for example)?
• What leading indicators are, or could be, commonly used in your industry?
• What metrics do you share with top management?
• How do you determine the effectiveness of your leading indicators?
• Do you link your leading indicators to outcome data, such as OSHA incident rates to evaluate results?
• How could employers be encouraged to use leading indicators in addition to lagging indicators to improve safety management systems?
• What barriers and challenges, if any, have you encountered to using leading indicators?

Individuals may submit comments at regulations.gov by July 17, 2023, which is the Federal eRulemaking Portal, identified by docket number OSHA-2023-0006. For more information, see the OSHA Trade Release.

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

FMCSA: Agency Information Collection Activities; Renewal of Currently Approved Information Collection: Hazardous Materials Safety Permits

The agency is renewing an ICR titled, ‘‘Hazardous Materials Safety Permits.’’ This ICR requires companies holding safety permits to develop communication plans that allow for the periodic tracking of hazardous materials shipments. A record of the communications that includes the time of the call and location of the shipment may be kept by either the driver (e.g., recorded in the logbook) or the company. These records must be kept, either physically or electronically, for at least 6 months at the company’s principal place of business or readily available to the employees at the principal place of business.

Read more >> https://www.govinfo.gov/content/pkg/FR-2023-06-08/pdf/2023-12255.pdf

Perchloroethylene (PCE); Regulation Under the Toxic Substances Control Act (TSCA)

The Environmental Protection Agency proposes to ban most uses of perchloroethylene (PCE) and to require a workplace chemical protection program for PCE uses that are not banned. The proposed ban would prohibit manufacturing, processing, and distribution of PCE for consumer uses; prohibit most industrial and commercial uses of PCE; and create workplace protections for the remaining uses. Comments due August 15.

Read more >> https://www.federalregister.gov/documents/2023/06/16/2023-12495/perchloroethylene-pce-regulation-under-the-toxic-substances-control-act-tsca

The EPA has published new guidance related to the characterization of waste related to lithium batteries

The agency has published new guidance related to the characterization of waste related to lithium batteries. This important guidance lays out several standards and how the agency interprets them. It features a lengthy “FAQ” list that attempts to address what the agency believes are the most common and pertinent questions related to how lithium batteries are to be considered and treated as part of potential waste streams. Battery users that dispose of, recycle, or reuse such batteries may be affected, so it’s important to have a look. See the new guidance here:

USDOT Proposes Requirements for Real-time Hazmat Information for Firefighters and First Responders to Improve Freight Rail Safety

USDOT Proposes Requirements for Real-time Hazmat Information for Firefighters and First Responders to Improve Freight Rail Safety

Proposal Adds to Several Actions USDOT Has Taken to Improve Freight Rail Safety

WASHINGTON –The U.S. Department of Transportation’s Pipeline and Hazardous Materials Safety Administration (PHMSA) today announced it is proposing a new rule aimed at improving public safety and preventing environmental impacts by strengthening requirements governing railroads’ provision of hazardous materials information to responders during a hazmat incident. The proposal would require railroads to always maintain — and update in real-time — accurate, electronic information about rail hazmat shipments in a train consist that would be accessible to authorized emergency response personnel. Railroads would also be required to proactively “push” that information to authorized local first response personnel as soon as the railroad is aware of an accident involving any hazardous materials.

“When railroads transport hazardous materials, they must do so safely and responsibly,” said U.S. Transportation Secretary Pete Buttigieg. “Our proposal would improve rail safety and help protect communities across the country by requiring railroads to maintain detailed, real-time information about trains carrying hazardous materials.”

“On-demand access to key information about hazmat shipments coupled with proactive information sharing will enable first responders to better prepare for the risks present at the scene of an incident BEFORE they arrive on scene,” said PHMSA Deputy Administrator Tristan Brown. “This will improve safety for firefighters and first responders, and the communities they so courageously serve.”

“Fire fighters are often first to show up at many emergencies, including train derailments and HazMat incidents. Accurate, up-to-date information about train contents is critical to keep first responders and the communities they serve safe. The IAFF strongly supports the Department of Transportation’s new rule that would give fire fighters real-time data allowing for safer responses. We applaud the DOT for prioritizing fire fighter and public safety,” according to Edward A. Kelly, General President, International Association of Fire Fighters.

PHMSA and the Federal Railroad Administration  (FRA) have taken several additional actions to improve freight rail safety. That includes making more than $25 million in funding available to help train first responders and strengthen safety programs and issuing safety advisories to railroad companies about replacing tank car covers and urging a faster transition from DOT-111s to DOT 117s rail cars.

The Notice of Proposed Rulemaking (NPRM) would require all railroads to generate, in hard copy and electronic versions, real-time train consist information for shipments containing hazardous materials. Required information would include the quantity and position of the shipment on the train, the shipment’s origin and destination, and a designated emergency point of contact at the railroad.

The proposal responds to congressional mandates in the FAST Act, National Transportation Safety Board (NTSB) recommendation providing electronic train consist information to emergency officials and personnel that respond to hazmat incidents for railroads, as well as lessons learned from firefighters responding to the February 2023 Norfolk Southern derailment in East Palestine, OH. Consistent with the broad scope of the NTSB recommendation, PHMSA’s proposal goes beyond the FAST Act mandate that had been limited to Class 1 railroads and extends these new proposed requirements to all railroad classes and requires proactive notification to local first responders in the case of an accident or an incident involving a release or suspected release of a hazardous material.

The proposed rule has been transmitted to the Federal Register.  A publication date will be provided when it becomes available along with an opportunity to provide public comment.

Bill to Modernize CEPA Receives Royal Assent

Bill S-5, Strengthening Environmental Protection for a Healthier Canada Act (the Act), received Royal Assent on June 13, 2023. According to Environment and Climate Change Canada’s (ECCC) Backgrounder, the Act modernizes the Canadian Environmental Protection Act, 1999 (CEPA) and represents the first set of comprehensive amendments to CEPA since it was enacted over 20 years ago. It also makes related amendments to the Food and Drugs Act. The Act was initially introduced in the 43rd Parliament in April 2021 as Bill C-28, but it was not considered due to the federal election in September 2021. Under the Act, ECCC will develop a new plan of chemical management priorities and will propose a new regime to manage toxic substances of highest risk. Canada will create a publicly available “Watch List” of substances determined to be capable of becoming toxic under CEPA to inform Canadians and businesses of substances that they may wish to avoid. This memorandum provides a summary of the amendments and new measures in the Act. For more information, please read the full memorandum.

Read more >> https://www.actagroup.com/regulatory-developments/entry/bill-to-modernize-cepa-receives-royal-assent

Protecting Workers During National Safety Month

June marks the beginning of National Safety Month, which focuses on raising public awareness of the leading safety and health risks for workers and aims to decrease the number of injuries and fatalities in workplaces. While safety is important year-round, observances such as National Safety Month are paramount to raising awareness about safety and health hazards and creating an environment where workers and organizations can put safety first.

A safety-first workplace environment focuses on eliminating the leading causes of preventable injuries and deaths. By creating awareness of the risks and hazards and educating workers to conduct tasks safely, solutions can be made to help eliminate on-site risks.

In safety plans, PPE should be considered the last line of defense against injury. But while it is viewed as the last line of defense, it is still crucial to have head-to-toe PPE. Indeed, head-to-toe protection starts at the top. This National Safety Month, let’s review the head, face and eye protection needed when it comes to staying protected on the job.

Read more >> https://ohsonline.com/articles/2023/06/01/protecting-workers-during-national-safety-month.aspx?admgarea=magazine&m=1

–OHS

Beltway Buzz – Ogletree Deakins

Summer Arrives, but Congress Eyes Fall Deadlines. This week, the U.S. Congress wrapped up an extended period in Washington, D.C., before heading out for a two-week recess for the Independence Day holiday. In the wake of the Fiscal Responsibility Act, appropriators spent much of their time this week working on the various bills that theoretically must be passed to fund the federal government beyond September 30, 2023. Funding for the federal government, as well as the military, will be addressed in the next big policy debates on Capitol Hill that will unfold over the summer and early fall. The Buzz will be watching to see where labor and employment issues—such as potential confirmation votes for nominees such as Julie Su (nominated to be U.S. secretary of labor)—will fit in Congress’s busy schedule.

Nominations: Federal Judicial Update. On June 21, 2023, the U.S. Senate confirmed Natasha C. Merle to serve as a district judge of the U.S. District Court for the Eastern District of New York. The confirmation marks the 100th district judge confirmed by the Senate during the Biden presidency. As of this week, the Senate had confirmed 136 federal judges (pursuant to Article III of the U.S. Constitution), including Ketanji Brown Jackson, who in April 2022 was confirmed as an associate justice of the Supreme Court of the United States, 35 judges to the U.S. courts of appeals, and 100 judges for the U.S. district courts. In comparison, at the same time during the Trump presidency, the Senate had confirmed two associate Supreme Court justices (Neil Gorsuch and Brett Kavanaugh), 41 judges to the U.S. courts of appeals, and 80 district court judges.

POTUS Renominates EEOC Chair. President Biden has renominated U.S. Equal Employment Opportunity Commission (EEOC) chair, Charlotte Burrows, to serve a third term. Burrows began serving on the EEOC in 2015 and was renominated for a second term that ends on July 1, 2023. However, as long as her nomination is pending, Burrows may continue to serve until the Senate adjourns sine die (likely at the end of the calendar year). Also pending in the Senate is Kalpana Kotagal’s nomination to serve as a commissioner of the EEOC and Karla Gilbride’s nomination to serve as EEOC general counsel.

PWFA on the Way. Signed into law on December 29, 2022, the Pregnant Workers Fairness Act (PWFA) goes into effect next week—on June 27, 2023. The PWFA requires the EEOC to promulgate implementing regulations by December 29, 2023, but the Commission hasn’t even issued a regulatory proposal yet. The absence of a notice of proposed rulemaking prompted Senator Bill Cassidy (R-LA)—the U.S. Senate Committee on Health, Education, Labor and Pensions’ (HELP) ranking member and the lead Republican co-sponsor of the PWFA—to criticize the Commission two weeks ago. The Commission has released a basic guidance document on the law.

AI Developments. It was another busy week on the artificial intelligence policy debate front. Here is the latest:

• Senator Schumer calls for comprehensive framework. During a speech at a Washington, D.C., think tank this week, Senate Majority Leader Chuck Schumer (D-NY) unveiled his road map for developing comprehensive artificial (AI) legislation. Schumer called the plan the “SAFE Innovation Framework for AI Policy.” Schumer explained that while innovation must be our “north star,” it must be informed by “Security, Accountability, protecting our Foundations, and, lastly, Explainability.” Interestingly, Schumer called for a new legislative process because “[t]he traditional approach of Committee hearings play[s] an essential role but won’t, on [its] own, suffice.” He promised that later this year he would convene a series of “AI insight forums” with industry experts to help develop the process and policy.
• Legislators seek bipartisan AI commission. This week, a bipartisan group of legislators introduced the National AI Commission Act. The bill would create a national AI commission—composed of ten legislators from each party—to study and recommend “any governmental structures that may be needed to oversee and regulate artificial intelligence systems, including the feasibility of an oversight structure that can oversee powerful artificial intelligence systems with a general purpose through a careful, evidence-based approach.”

Senate Committee Advances Labor and Employment Bills. This week, the Senate HELP Committee advanced, on 11–10 party-line votes, three labor and employment bills.

• The Paycheck Fairness Act (S. 728) would
• • rewrite employers’ affirmative defenses to make it harder to demonstrate that nondiscriminatory factors account for pay differentials;
  • allow plaintiffs to recover compensatory and unlimited punitive damages;
  • make it easier for plaintiffs to bring and maintain class actions;
  • require employers to submit employee compensation data to the EEOC and Office of Federal Contract Compliance Programs (OFCCP); and
  • prohibit employers from asking about or using job applicants’ wage histories.
• The Healthy Families Act (S. 1664) would require employers with fifteen or more employees to allow employees to accrue up to seven days of paid sick leave per year.
• The Richard L. Trumka Protecting the Right to Organize Act of 2023 (S. 567), which the Buzz has discussed extensively, would turn current federal labor law on its head to favor labor unions.

With the legislative filibuster in place, the bills are unlikely to garner the sixty votes needed to pass the Senate.

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 June-August 2023

• PHMSA – Hazardous Materials: Harmonization With International Standards – IHMM Will File Comments – Docket No. PHMSA-2021-0092 (HM-215Q)

• 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