EHS Professional – January 11, 2024

IHMM Enters Its 40th Year

On December 3, 1984 the Institute of Hazardous Materials Management was created with the Certified Hazardous Materials Manager® [CHMM®] credential.  John H. Frick, Harold M. Gordon, John J. McCambridge, and Richard A. Young created what would become an Institute that offers 11 professional credentials across Hazardous Materials/Dangerous Goods and EHS Work Place Safety communities of practice in all 50 of the United States and 85 other countries.

IHMM thanks its hundreds of volunteer leaders, thousands of certificants and companies who support IHMM through strengthening its ability to extend its reach and allow us all to live up to why we exist our vision, and our mission…

Why We Exist

Our Vision

Our Mission

IHMM Government Affairs in 2023

Here are the highlights of what we worked on in 2023, and with a new committee forming will build on for 2024.

• Professional Certification Coalition, 2023 Accomplishments and 2024 Priorities
• More Federal Recognition for the CSHM, CSMP, CHMM, and CHMP – IHMM Comments to OSHA Voluntary Protection Program [VPP]
• Hazardous Materials: Harmonization With International Standards – IHMM Comments Filed 7/31/2023
• PHMSA Seeks Comment on Initiatives to Modernize the HMR
• PHMSA – Hazardous Materials: Harmonization With International Standards – IHMM Comments Submitted – 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
• 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
• OSHA, finding the personnel who make the decisions concerning credentials recognized as prerequisites for OSHA training programs
• Maine DEP, update Chapter 851, Standards for Generators of Hazardous Waste. In the current regulation work is required by a professional engineer. IHMM is proposing to include an environmental professional as defined by 40 CFR §312.10.

The IHMM Government Affairs Committee is found here, where you may also join our group.

IHMM Organizing Broader Government Affairs Activities – Call for Volunteers

In strategic planning on August 17, 2023 IHMM created a strategic imperative to create a broader government affairs operation on behalf of, and with the assistance of, all of IHMM’s certificants.

On August 29, 2023 IHMM’s Executive Director made a presentation of this strategic imperative to the AHMP annual conference. Here is what IHMM intends to organize over the next few months:

If you want to make a difference in the recognition of your credentials and build on the successful record we have achieved thus far – we need you to volunteer. Learn more by visiting our Government Affairs Committee page, and get involved with government affairs. You can volunteer for one, two, three or all four of the segments of the committee’s work. That’s up to you!

The full presentation may be viewed here.

IHMM To Propose Changes in Government Recognition of Credentials

State of Maine Department of Environmental Protection is proposing to update Chapter 851, Standards for Generators of Hazardous Waste. In the current regulation work is required by a professional engineer. IHMM is proposing to include an environmental professional as defined by 40 CFR §312.10.

The Occupational Safety and Health Administration has a number of courses in occupational safety and health within which OSHA credits “A degree in occupational safety and health, a Certified Safety Professional (CSP) or a Certified Industrial Hygienist (CIH) designation.” IHMM will propose including the CHMM, CSHM, and CSMP.

Beltway Buzz, Ogletree Deakins

Congress Returns. This week Congress is beginning to return to the nation’s Capitol, facing a January 19th deadline for passing funding legislation to keep the government open. The Senate Leader Schumer and House Speaker Johnson announced on the 7th a deal around the $1.66 trillion figure. The glee lasted the length of an egg timer as wings on both sides decried who approved what. We shall see what the week brings.

New Union Election Process Becomes Effective Next Week. Employers are reminded that the National Labor Relations Board’s (NLRB) latest changes to its union election regulations become effective on December 26, 2023. The NLRB general counsel released a memorandum on December 8, 2023, that “provides guidance to Agency personnel, parties, practitioners, and other stakeholders about representation case processing once the 2023 Election Rule goes into effect.”

PWFA Final Reg on the Way? Pursuant to the Pregnant Workers Fairness Act (PWFA)—passed nearly one year ago—the U.S. Equal Employment Opportunity Commission (EEOC) must publish final implementing regulations by December 29, 2023. As proposed, the regulations define key terms—such as what it means to be a “qualified” employee—and provide examples of reasonable accommodations that employers might provide to workers covered by the statute.

DOL Seeks Input on Potential Schedule A Changes. The U.S. Department of Labor’s (DOL) Employment and Training Administration issued a request for information (RFI), on December 22, 2023, seeking feedback on potential modernizations to Schedule A of the permanent labor certification process. Schedule A, which hasn’t been updated since 2004, lists occupations for which the “DOL has predetermined there are not sufficient U.S. workers who are able, willing, qualified, and available pursuant to regulation.” Employers interested in hiring to fill a position listed as a Schedule A occupation are not required to conduct a labor market test and can file an application for permanent employment certification directly with U.S. Citizenship and Immigration Services (USCIS). Issued pursuant to President Biden’s executive order on “Safe, Secure, and Trustworthy Development and Use of Artificial Intelligence,” the RFI specifically seeks feedback on whether any science, technology, engineering, and mathematics (STEM) occupations should be added to Schedule A and which jobs should be considered part of a STEM occupation. Comments are due by February 20, 2024.

H-1B Domestic Renewal Pilot Program Moves Forward. The Office of Information and Regulatory Affairs has completed its review of the U.S. Department of State’s pilot program that will reportedly allow 20,000 H-1B visa holders to renew their visas while remaining in the United States. In a notice of pilot program published in the Federal Register on December 21, 2022, the State Department said that “[t]he program will accept applications from January 29 to April 1, 2024.” Whitney Brownlow, Marissa E. Cwik, and Ashley Urquijo have the details.

Administration Finalizes PLA Requirements for Federal Projects. The Department of Defense, General Services Administration, and the National Aeronautics and Space Administration have finalized a rule that will mandate the use of project labor agreements for contractors and subcontractors engaged in construction of federal projects “for which the total estimated cost of the construction contract to the Federal Government is $35 million or more.” The regulations implement President Biden’s February 4, 2022, executive order “Use of Project Labor Agreements for Federal Construction Projects.” According to a White House fact sheet, “It is estimated that the rule will result in the Federal Government requiring PLAs on a majority of large Federal contracts.” The rule becomes effective thirty days after the date of publication in the Federal Register.

DOL Proposes Changes to National Apprenticeship System. The Employment and Training Administration has released a notice of proposed rulemaking (NPRM) to amend the regulations governing registered apprenticeship programs. As Senator Bill Cassidy (R-LA), ranking member of the Senate Committee on Health, Education, Labor and Pensions (HELP), notes, the 779-page NPRM implements the National Apprenticeship Act of 1937, which is a little over one page in length. Among other provisions, the proposal would:

• “create more safeguards for apprentices to ensure that they have healthy and safe working and learning environments as well as just and equitable opportunities throughout their participation in a registered apprenticeship program”;
• allow government “Registration Agencies”—according to Senator Cassidy—to take over the role of the National Labor Relations Board by empowering them to dissolve apprenticeship programs when any program sponsor or participating employer is merely alleged to have interfered with workers’ Section 7 rights; and
• aim to make “quality improvements throughout the system to improve the protection, safety, and welfare of apprentices, such as proposed prohibitions on non-compete and non-disclosure provisions in apprenticeship agreements between sponsors and apprentices and enhanced protections against unreasonable participation costs for apprentices.”

Comments are due sixty days after publication in the Federal Register.

Senate Targets Bureaucratic Waste. Who says Congress doesn’t accomplish anything constructive? Well, on December 20, 2023, the U.S. Senate took a step—albeit a small one—to reduce federal government waste by passing the Eliminate Useless Reports Act of 2023 (S. 2073). The bipartisan bill instructs heads of federal agencies to identify recurring plans or reports that it submits to Congress that are “outdated or duplicative,” along with “a recommendation on whether to sunset, modify, consolidate, or reduce the frequency of the submission of the recurring plan or report.” This all sounds good to the Buzz—assuming the U.S. House of Representatives passes the bill—just so long as Congress doesn’t subsequently establish a standing committee to evaluate and report on the impacts of the legislation.

DOL – Employee or Independent Contractor Classification Under the Fair Labor Standards Act

The U.S. Department of Labor (the Department) is modifying Wage and Hour Division regulations to replace its analysis for determining employee or independent contractor classification under the Fair Labor Standards Act (FLSA or Act) with an analysis that is more consistent with judicial precedent and the Act’s text and purpose.

DATES:

This final rule is effective on March 11, 2024.

Executive Summary

This final rule addresses how to determine whether a worker is properly classified as an employee or independent contractor under the Fair Labor Standards Act (FLSA or Act). Congress enacted the FLSA in 1938 to eliminate “labor conditions detrimental to the maintenance of the minimum standard of living necessary for health, efficiency, and general well-being of workers.” ^[1] To this end, the FLSA generally requires covered employers to pay nonexempt employees at least the Federal minimum wage for all hours worked and at least one and one-half times the employee’s regular rate of pay for every hour worked over 40 in a workweek. The Act also requires covered employers to maintain certain records regarding employees and prohibits retaliation against employees who are discharged or discriminated against after, for example, filing a complaint regarding their pay. However, the FLSA’s protections do not apply to independent contractors.

Read the full rule text here.

OSHA – Forthcoming Proposal for Emergency Response Workers

The Occupational Safety and Health Administration (OSHA) announced in December that it will publish a proposal in January 2024 to update an existing standard and expand safety and health protections for emergency responders, including firefighters, emergency medical service providers and technical search and rescue workers.

OSHA’s forthcoming Notice of Proposed Rulemaking proposes modernizing the agency’s “Fire Brigades” standard (29 CFR 1910.156)— first published in 1980— as its protections for a narrow set of industrial and private firefighters have become outdated. The newly named “Emergency Response” standard would update safety and health protections in line with national consensus standards for a broad range of workers exposed to hazards that arise during and after fires and other emergencies and will include major changes for protective clothing and equipment and significant improvements in safety and health practices that the industry generally accepts as standard procedures.

For more information, please see the trade release or visit osha.gov/emergency-response/rulemaking. An unofficial version of the proposed rule is also available for viewing; please note that OSHA will accept public comments once the official version is published in the Federal Register in January.

OSHA – New Injury Tracking Application

Please be aware that the updated Occupational Safety and Health Administration (OSHA) Injury Tracking Application (ITA) is now available from osha.gov/injuryreporting. This page provides requirements and guidance about electronically submitting your establishments’ injury and illness data from the OSHA Form 300A: Summary of Work-Related Injuries and Illnesses, OSHA Form 300: Log of Work-Related Injuries and Illnesses, and OSHA Form 301: Injury and Illness Incident Report.   These data help employers, workers and OSHA evaluate the safety of a workplace, understand industry hazards, and implement worker protections to reduce and eliminate hazards -preventing future workplace injuries and illnesses.

As a reminder, establishments that meet certain size and industry criteria are required to electronically submit injury and illness data from their OSHA Form 300A, 300, and 301 (or equivalent forms) once per year to OSHA via the ITA. Employers should visit the ITA Coverage Application to determine whether they are required to submit this data. Data collection for CY 2023 will begin January 2, 2024, and must be submitted by March 2, 2024.

Linking Risk Characterization and Risk Management: How to Optimize Tools for a Safer Workplace

AIHA and the Foundation for Chemistry Research and Initiatives (FCRI) hosted a series of workshops on occupational risk assessment. The fifth and final webinar in the Many Paths – One Goal series, which was held on Dec. 7, brought together a panel of experts to discuss approaches for characterizing and managing risks in the workplace. The experts presented an overview of risk characterization, the application of the hierarchy of controls, risk management in the context of regulations (for example, EPA’s implementation of the Toxic Substances Control Act), and emerging hazard control technologies and practices.

Read more here.

EPA Begins TSCA Prioritization Process For Five Chemicals

EPA announced on December 14, 2023, that it is beginning the process to prioritize five additional toxic chemicals for risk evaluation under TSCA. The chemicals are acetaldehyde, acrylonitrile, benzenamine, 4,4’-methylene bis(2-chloroaniline) (MBOCA), and vinyl chloride. Between September and November 2023, EPA met with federal partners, industry, environmental organizations, labor organizations, state and local governments, and Tribes to discuss the prioritization process and presented a list of 15 chemicals that EPA was considering for prioritization. The ten chemicals not selected include: 4-tert-Octylphenol(4-(1,1,3,3-Tetramethylbutyl)-phenol); benzene; bisphenol A; ethylbenzene; napthalene; styrene; tribromomethane; triglycidyl isocyanurate; hydrogen fluoride; and N-(1,3-Dimethylbutyl)-N’-phenyl-p-phenylenediamine. Publication of a Federal Register notice announcing the process will begin a 90-day comment period. EPA has posted a prepublication version of the notice. More information will be available in a forthcoming memorandum.

–Bergeson & Campbell

Speed-limiter proposal hot topic of House hearing

Members of the House Highways and Transit Subcommittee veered from the focus of a recent hearing by challenging legislation that would require speed-limiting devices on heavy trucks.

During the Dec. 13 hearing on implementing provisions of the Infrastructure Investment and Job Act, Federal Motor Carrier Safety Administration head Robin Hutcheson fielded heavy questioning about the agency’s May 2022 advance notice of proposed rulemaking.

The ANPRM, however, isn’t part of the law.

Read more by clicking here.

Biden-Harris Administration Announces $47 Million in New Funding to Support School Infrastructure Investments

The Biden-Harris Administration announced eight new grant awards today totaling more than $37 million over five years under the Supporting America’s School Infrastructure (SASI) program and one new grant for $10 million over five years under the National Center on School Infrastructure (NCSI) program. This $47 million investment, issued by the U.S. Department of Education (Department), bolsters the capacity of states to support school districts in improving school facilities with the goal of more equitable access to healthy, sustainable, and modern learning environments for all students. U.S. Secretary of Education Miguel Cardona will highlight this announcement during a visit to Virginia today with Ranking Member of the House Education and Workforce Committee, U.S. Rep. Bobby Scott, and U.S. Sen. Tim Kaine, a member of the Senate Committee on Health, Education, Labor and Pensions.

Read more by clicking here.

Regulatory Update: DOL Rule Could Turn Contractors Into Employees

“Misclassifying employees as independent contractors is a serious issue that deprives workers of basic rights and protections,” explained Acting Secretary of Labor Julie Su.

In a highly anticipated ruling, the DOL on January 9 announced a final rule to help employers and workers better understand when a worker qualifies as an employee and when they may be considered an independent contractor under the Fair Labor Standards Act.

The rule provides guidance on proper classification and seeks to combat employee misclassification, a serious problem that impacts workers’ rights to minimum wage and overtime pay, facilitates wage theft, allows some employers to undercut their law-abiding competition and hurts the economy at-large.

Read more by clicking here.

Biden mandates PLAs on large federal contracts

The White House announced on Monday the implementation of an executive order to require project labor agreements on federal construction jobs above $35 million.

The Biden administration announced on Monday a final rule implementing an executive order that will require project labor agreements on federal construction projects costing $35 million or more. It will likely result in PLAs being required on a majority of large federal jobs.

President Joe Biden first enacted the rule change in February 2022, but it will not go into effect until 30 days after it is published in the Federal Register on Friday, due to formal rule change processes by the Federal Acquisition Regulatory Council. The executive order’s implementation replaces an Obama-era rule that encouraged PLAs on federal jobs, but did not mandate the practice.

As a result, the White House estimated as many as 200,000 workers on federal construction jobs could see boosted “wages, benefits and safety protections regardless of union membership.”

Read more by clicking here.

DOL rule would promote apprenticeships, tighten program labor standards

Read more by clicking here.

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.

2023 Accomplishments and 2024 Priorities

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