IHMM Today July 25, 2023

EPA Sends Revised WOTUS Rule To OMB, Teeing Up Debate On New Test

EPA has sent a new final definition of “waters of the United States” (WOTUS) to the White House Office of Management and Budget (OMB), setting the stage for what is likely to be a barrage of meetings where stakeholders on all sides will lay out their arguments for how the Supreme Court’s landmark Sackett v. EPA decision should affect the rule.

According to OMB’s website, it received the final WOTUS rule from EPA on July 17. The agency has not yet given any public hint of what standard the new policy will use to determine which waterbodies are subject to the Clean Water Act (CWA), but officials have already told stakeholders, lawmakers and courts that they intend to issue a new WOTUS definition by Sept. 1, and are working to “surgically” amend the rule issued early this year to account for Sackett.

So far, EPA has won pauses in two of the three legal challenges against the WOTUS rule based on the pending rulemaking.

–Inside EPA

IG Urges EPA To Quickly Ramp Up Public Warnings On Lead In Drinking Water

EPA’s Office of Inspector General (OIG) says EPA is not immediately notifying communities when it detects lead levels above its regulatory action levels in drinking water, in part because it delayed a Trump-era mandate for such warnings until 2024, and is calling on the agency to identify steps it can take to remedy a situation that the office says could create “significant” public health risks.

OIG issued the finding as an unusual “interim” report on July 20, stemming from its ongoing audit of whether EPA complied with public notification requirements under the 2016 Water Infrastructure Improvements for the Nation (WINN) Act. While that project is still ongoing, OIG says, it “decided to issue this management alert” as the lack of immediate public notification for lead exceedances “may pose a significant risk to public health.”

The report notes that the Trump EPA’s 2021 lead and copper rule revisions (LCRR), “based on the conclusion that a lead-action-level exceedance has ‘the potential to have serious adverse effects on human health as a result of short-term exposure,’ . . . require immediate public notification for the exceedance.”

–Inside EPA

DOL Personal Protective Equipment in Construction Proposed Rule

The U.S. Department of Labor today announced a notice of proposed rulemaking to clarify the personal protective equipment standard for the construction industry.  The current standard does not state clearly that PPE must fit each affected employee properly, which the Occupational Safety and Health Administration’s general industry and maritime standards do. The proposed change would clarify that PPE must fit each employee properly to protect them from occupational hazards. The proposed rule clarifies the existing requirement, and OSHA does not expect the change will increase employers’ costs or compliance burdens. Individuals may submit comments and hearing request, identified by Docket No. OSHA-2019-0003, electronically at http://www.regulations.gov, which is the Federal e-Rulemaking Portal. All comments and hearing request must be submitted by 60 days after publication in the Federal Register.

For more information, please visit OSHA’s Personal Protective Equipment website, OSHA’s News Release and Federal Register Notice.

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/​.

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

Beltway Buzz – Ogletree Deakins

Su Nomination in Limbo. Late last week, Senator Joe Manchin publicly voiced his opposition to Julie Su’s nomination to be secretary of labor. Senator Manchin stated:

I believe the person leading the U.S. Department of Labor should have the experience to collaboratively lead both labor and industry to forge compromises acceptable to both parties. While her credentials and qualifications are impressive, I have genuine concerns that Julie Su’s more progressive background prevents her from doing this and for that reason I cannot support her nomination to serve as Secretary of Labor.

This means that Su will need all remaining Democrats and the three Independents (and a tiebreaking vote by Vice President Kamala Harris) in the U.S. Senate to support her nomination in order to be confirmed. Even this might be a stretch, as the White House last week appeared to “out” Senator Kyrsten Sinema (I-AZ) by stating that they hope she reconsiders her position on Su, even though she has not publicly declared how she will vote on Su’s nomination. On July 19, 2023, Senator Bill Cassidy (R-LA), ranking member of the Senate Committee on Health, Education, Labor and Pensions, called on President Biden to withdraw Su’s nomination, noting that “[n]o Cabinet level nominee has waited longer for a floor vote when the Senate and White House were controlled by the same political party.” As Senator Cassidy pointed out in his letter, even with these political headwinds, due to the nature of Su’s appointment, it is possible that the administration might be trying to shoehorn Su into serving as acting secretary of labor indefinitely.

Workplace Safety Update. The Occupational Safety and Health Administration (OSHA) appears to be hitting its rulemaking stride, as it has recently advanced the following initiatives:

• Injury and illness reporting. Today, OSHA published in the Federal Register its latest changes to its injury and illness reporting rule. The final rule will require covered employers with one hundred or more employees to electronically submit to OSHA their Form 300 (work-related injuries and illnesses), Form 301 (injury and illness incident report), and Form 300A (yearly summary). OSHA will make these forms publicly available, and labor unions will undoubtedly be interested in reviewing them. The rule takes effect on January 1, 2024. John D. Surma and David B. Walston have a great write-up on the back-and-forth saga (spanning three administrations) of the regulation and what it ultimately means for employers.
• PPE proposal. On July 20, 2023, OSHA issued a proposed rule revising its personal protective equipment (PPE) standard for construction. The rule would clarify and “explicitly state that PPE must fit properly to protect workers from workplace hazards.” According to the proposal, OSHA “preliminarily concludes that the rule is not expected to impose new costs on employers as a result of a new regulatory requirement.” Comments are due by September 18, 2023. John Surma and Savannah M. Selvaggio have the details.
• OSHA targets warehousing industry. Effective July 13, 2023, OSHA launched a national emphasis program (NEP) on warehousing and distribution center operations. Pursuant to the NEP, OSHA inspectors will focus on “warehousing and distribution center operations, mail/postal processing and distribution centers, parcel delivery/courier services, and certain high injury rate retail establishments.” Inspections will scrutinize “powered industrial vehicle operations, material handling/storage, walking-working surfaces, means of egress, and fire protection,” as well as heat and ergonomic hazards. Wayne E. Pinkstone and John Surma have the details.
• Walkaround proposal advances. On July 17, 2023, OSHA transmitted to the Office of Information and Regulatory Affairs its rulemaking proposal that “will clarify the right of workers and certified bargaining units to specify a worker or union representative to accompany an OSHA inspector during the inspection process/facility walkaround, regardless of whether the representative is an employee of the employer.” The proposal will likely attempt to codify OSHA’s controversial 2013 interpretation letter that was subsequently rescinded by the Trump administration.

House Republicans Scrutinize DOL Rulemaking. On July 18, 2023, the House Subcommittee on Workforce Protections held a hearing entitled, “Cutting Corners at WHD: Examining the Cost to Workers, Small Businesses, and the Economy.” The hearing is another example of Republicans’ use of their congressional oversight authority to impact the administration’s rulemaking agenda. It also represents an example of Republican efforts—even though House Republicans lack the constitutional “advise and consent” authority possessed by their counterparts in the Senate—to derail the nominations of U.S. Department of Labor (DOL) nominees Su and Jessica Looman (nominated to serve as director of the Wage and Hour Division).

Revised Voluntary Self-Identification of Disability Form Deadline. July 25, 2023, is the deadline for federal contractors to incorporate the Office of Federal Contract Compliance Programs’ (OFCCP) revised Voluntary Self-Identification of Disability Form into their applicant and employee processes. In April 2023, OFCCP made revisions to the form to “update the preferred language for disabilities and to include additional examples of disabilities.” Cameron W. Ellis has the details on the changes.

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

Freedom to Invest in Tomorrow’s Workforce Act (H.R. 1477/S. 722) 

• • The PCC has been hard at work planning strategy and meeting with congressional offices to encourage Members of Congress to sign on as cosponsors to our legislation. H.R. 1477 now has 15 cosponsors (9 GOP, 6 DEM), while S. 722 has 8 cosponsors (5 DEM, 3 GOP).  We are pleased with the progress we are making in cultivating support for the bill and thank our PCC members for their own advocacy efforts.  We are also grateful for the high level of enthusiasm that the staffers for our lead sponsors for the bill are demonstrating; their motivation is critical to the bill’s advancement through Congress.
  • Complementing the PCC’s individual efforts, we are connecting with other industry stakeholders to coordinate on strategy and outreach.  As we will soon announce in a more formal manner, we are in the process of assembling an informal coalition – spearheaded by ASAE/PCC – of groups interested in promoting Freedom to Invest, as many organizations outside of the certification community are also supportive of the bill. The coalition will meet on a periodic basis (e.g., once a month), produce and distribute advocacy materials, attend congressional meetings jointly, and be in frequent communication regarding developments surrounding the legislation.  If your organization is interested in participating in this Freedom to Invest-specific coalition – which will not require any sort of financial commitment – please let us know, and we’ll include you on the list. And we will of course keep all PCC members informed about developments with the bill through our regular member updates and strategy calls.

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 Draft Comments Above – 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.

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

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