IHMM Today July 11, 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.

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.

Beltway Buzz – Ogletree Deakins

SCOTUS Recap. Because the Buzz was away last week, we want to make sure that our readers have seen the thoughtful insights prepared by our colleagues on the impacts to employers stemming from the Supreme Court of the United States’ recent groundbreaking decisions related to affirmative action in college admissions and the standard for religious accommodation under Title VII of the Civil Rights Act of 1964. Further, on July 12, 2023, Shafeeqa W. Giarratani and T. Scott Kelly will host a webinar titled “The Supreme Court’s Affirmative Action Admissions Ruling—Ramifications for All Employers.” Register here.

EEO-1 Filing Delayed … But Why? James A. Patton, Jr. and Kiosha H. Dickey have the scoop on the U.S. Equal Employment Opportunity Commission’s (EEOC) postponement of the 2022 EEO-1 data collection. According to the EEOC, the agency is “currently completing a mandatory, three-year renewal of the EEO-1 Component 1 data collection” and “has updated the tentative opening of the 2022 EEO-1 Component 1 data collection to the Fall of 2023.” What isn’t clear—and what the EEOC does not provide—is the reason for the delay. As Jay and Kiosha posit, the delay could be due to technical changes to the form that the Commission proposed in November 2022. Could the delay simply be to realign the filing period with the traditional September 30 date that had been the filing deadline for years? Could the delay even be to buy some time for the confirmation of Democratic commissioner nominee, Kalpana Kotagal, who could provide a third vote to reinstate the short-lived EEO-1 Component 2 wage and hour data collection?

Mine Safety Agency Issues Silica Proposal. On June 30, 2023, the U.S. Department of Labor’s Mine Safety and Health Administration announced a proposed rule titled “Lowering Miners’ Exposure to Respirable Crystalline Silica and Improving Respiratory Protection.” The proposal would lower the current permissible exposure limit of respirable crystalline silica from 100 to “50 micrograms per cubic meter of air (µg/m³) for a full shift exposure, calculated as an 8-hour time-weighted average, for all miners.” The proposal also would update existing respiratory protection requirements and include “exposure sampling, corrective actions to be taken when miner exposure exceeds the permissible exposure limit, and medical surveillance for metal and nonmetal miners.” Comments will be due forty-five days after the proposal is published in the Federal Register. Senator Joe Manchin (D-WV)—whose vote the administration will need to confirm secretary of labor nominee Julie Su—joined other Democratic senators in praising the proposal.

Nomination News. Late last week, President Biden announced several important nominations to federal agencies.

• First, the president renominated Amanda Wood Laihow to serve as a member of the Occupational Safety and Health Review Commission (OSHRC). Laihow previously served on the Commission, beginning in January 2020. As the Buzz has discussed, the expiration of Laihow’s term in late April 2023 left OSHRC with only member—Commission Chair Cynthia Attwood—and without a functioning quorum. If Laihow is confirmed and sworn in, a quorum will have been restored and OSHRC will then be permitted to issue decisions.
• Second, the president nominated Virginia Solicitor General Andrew Ferguson and Utah Solicitor General Melissa Holyoak to the two vacant Republican seats on the Federal Trade Commission (FTC). While Democrats will still maintain a majority at the FTC with the confirmation of either or both nominees, the new commissioners will likely push back on current FTC initiatives, including the proposal to ban noncompete agreements.

PWFA Regs on the Way. As the Buzz recently noted, the Pregnant Workers Fairness Act (PWFA) went into effect on June 27, 2023, without implementing regulations in place. The U.S. Congress has tasked the EEOC with getting such regulations finalized by December 29, 2023. Late last week, the Commission sent to the Office of Information and Regulatory Affairs the proposed rule. While the rule is not publicly available at this time, the lengthy regulatory process means that if the Commission is to meet its year-end deadline for finalization, the proposal will likely be issued soon.

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

HM-265A: Modernizing Regulations to Improve Safety and Efficiency

PHMSA is seeking your input to help us improve the HMR!

On July 5, 2023, PHMSA published the Advance Notice of Proposed Rulemaking (ANPRM) “HM-265A: Modernizing Regulations to Improve Safety and Efficiency” to the Federal Register. Based on feedback from industry stakeholders, internal PHMSA review, NTSB safety recommendations, and modal safety partners, the ANPRM addresses 46 separate areas where the requirements of the HMR may need to be updated to increase efficiency while improving safety. Topics addressed in the ANPRM include those related to UN Performance Oriented Package testing, tank car safety, hazardous material employee training, and updates to incorporated by reference documents, among others.

The public comment period for this ANPRM ends on October 3, 2023. For questions, please contact Mr. Eamonn Patrick at [email protected].

HM-263: FAST Act Requirements for Real-Time Train Consist Information

On June 27, PHMSA published a new Notice of Proposed Rulemaking (NPRM) 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. This proposal is a response to mandates in the Fixing America’s Surface Transportation (FAST) Act and a recommendation from the National Transportation Safety Board (NTSB).

The proposal would require all 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. 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. 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.

The public comment period for this NPRM ends on August 28, 2023. For questions, contact Dirk Der Kinderen at (202) 366-8553.

HM-215Q: Harmonization with International Standards

On May 30, PHMSA published “HM-215Q: Hazardous Materials: Harmonization with International Standards” to the Federal Register. This NPRM proposes amendments to the Hazardous Materials Regulations to maintain alignment with international regulations and standards by adopting various amendments. Amendments include:

1. Incorporations by reference (IBR), to the 2023–2024 edition ICAO Technical Instructions, Amendment 41-22 to the IMDG Code, and the 22nd revised edition of the UN Model Regulations
2. Allowing continued use of the transport provisions for polymerizing substances, by removing the previous January 2, 2023 phaseout date
3. Adding a new entry to the Hazardous Materials Table “UN3550, Cobalt dihydroxide powder, containing not less than 10% respirable particles,” with corresponding packaging provisions
4. Removing the exceptions provided for small lithium cells and batteries for transportation by aircraft
5. Removing the telephone number requirement from the lithium battery mark. Note that while this change would not mean that it is a violation to continue to include the telephone number on lithium battery marks, shippers and manufacturers are encouraged to review their marking practices and make any necessary changes to minimize the risk of frustrated shipments.

PHMSA wants your feedback on this proposed rule, so be sure to submit before the comment period closes on July 31, 2023. For questions, contact Candace Casey or Aaron Wiener at (202) 366–8553.

Wanted: Fresh Ideas on Recycled Plastics

Consistent with the Administration’s goals of reducing climate pollution, PHMSA is committed to facilitating a more environmentally friendly and sustainable process for manufacturing hazardous materials packagings. On April 14, PHMSA issued this Request for Information (RFI), “Request for Feedback on Recycled Plastics Policy,” to seek feedback on the use of recycled plastics in manufacturing hazardous materials packagings.

With this RFI, PHMSA wants to:

1. Get insights on the impact recycled plastic resins could have on hazardous materials transportation safety
2. Be transparent about its current policy on using recycled plastics in the manufacturing of hazardous materials packagings
3. Receive your input to better inform potential regulatory changes
4. Gather more information for the evaluation of future approval requests.

The deadline for responses is July 13, 2023. So, don’t wait to share your thoughts on this crucial topic! Questions may be submitted to Ryan Larson at [email protected].

Attention Electric Vehicle Owners and Shippers: Watch Out for Flooded Lithium Batteries!

On April 7, 2023, PHMSA issued a safety advisory to alert the public of the risks of lithium battery-powered electric vehicles (EVs) that may have been damaged due to submersion during extreme weather events. PHMSA has learned of fires involving lithium batteries installed in EVs that were submerged in floodwaters after storms. Saltwater is especially harmful to lithium batteries as residual salt can cause the battery to short circuit and result in a fire. Additionally, the time frame in which a damaged battery can ignite varies, from days to weeks, and EV battery fires can be extremely damaging. Of course, transporting these flooded batteries could also pose a risk for shippers.

EV owners, salvage companies, and vehicle transport companies should check for potential damage to their installed lithium batteries before shipping. Shippers must follow the specific requirements in the HMR for both the transportation of EVs containing lithium batteries, and for the transportation of damaged or defective lithium batteries in commerce. PHMSA will continue to work with our safety partners to understand the emerging risks of flooded EV batteries. As such, we plan to conduct research and issue updated guidance when additional information is available.

For more details, view the full safety advisory here.

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