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Welcome to COMPLIANCE NETWORK
Make regulatory compliance easier than ever at your company with expert guidance and resources custom-tailored to your exact needs.
Workplace safety (OSHA).
Transportation (DOT).
Environment (EPA).
Human resources (DOL).
Hi everyone! Welcome to the monthly news roundup video, where we’ll review the most impactful environmental, health, and safety news. Please view the content links in the transcript for more information about the topics I’ll be covering today. Let’s get started!
Two State Plan agencies allegedly provided advance notice of workplace inspections to employers, a practice that’s prohibited under the Occupational Safety and Health Act. Now, lawmakers have requested that the Department of Labor’s acting secretary address the allegations and explain what challenges OSHA faces when monitoring and enforcing State Plan compliance.
A recent study shows jobs in agriculture, forestry, fishing, and hunting are among California’s most dangerous, accounting for the highest number of fatalities among full-time workers. Transportation and utilities jobs ranked second and construction was third.
Remote isolation of process equipment can quickly stop the release of hazardous materials, which can help prevent fatalities and injuries, limit facility damage, and better protect communities and the environment. A U.S. Chemical Safety Board study explores their use and makes recommendations for their utilization in chemical facilities.
A National Safety Council report explores the role of diversity, equity, and inclusion on work-related musculoskeletal disorders, or MSDs. MSDs are the most common workplace injury and often lead to worker disability, early retirement, and employment limitations.
And finally, turning to environmental news, EPA published a final rule that revises its hazardous waste export manifest regulations. All hazardous waste shipments and manifest-related reports will be managed electronically through the agency’s e-Manifest program.
Thanks for tuning in to the monthly news roundup. We’ll see you next month!
Yes, this includes traditional spills and releases. But have you considered looking beyond that? It can be beneficial to evaluate all types of environmental situations in your compliance programs that warrant tracking, corrective action, and, sometimes, reporting.
First, identify how your organization defines environmental incidents. You may decide it includes a wide range of environmental events or is very narrow in focus. For example, determine if it makes sense to include only releases that trigger regulatory reporting or if there’s a lower reporting threshold that’s more appropriate. If you track and investigate small spills, determine down to what level they’re addressed.
If your organization has multiple locations, does it make sense to create one set of rules for environmental incidents? Or does it create a stronger program to set different criteria and thresholds for each site or group of locations? I recently worked with a customer that operates three beverage manufacturing facilities and a dozen distribution centers. Because the risks and materials at each were different enough, it made sense for the customer to create distinct internal reporting criteria for each type of facility.
Also, consider the potential value of tracking and recording spills or leaks that occur inside buildings. These typically aren’t reportable, so many of you may be wondering why you should bother. There are many benefits to recording inside spills and leaks. I’ve worked with some environmental incident programs that effectively used this tracking as a leading indicator. Plus, you can see trends in equipment maintenance, operation, and housekeeping that, if adjusted, can help prevent similar incidents from occurring outside that would be reportable and could have a negative environmental impact. Identifying and investigating indoor spills can be an important component of employee safety as well.
Administrative program pieces are less commonly associated with an “incident,” but they should be considered. These incidents can fall under the radar, but most environmental enforcement actions are related to administrative incidents. Missed recordkeeping, missed reporting deadlines, and incomplete reports are all areas that trigger violations.
Clearly defining when something is and isn’t officially considered an incident helps you maintain a strong and compliant environmental program.
“Actions speak louder than words.” You can apply this expression to hazardous waste with a minor revision: “Actions speak louder than lists.” Even if a solid waste isn’t on any of the Environmental Protection Agency’s (EPA’s) hazardous waste lists, it may still be considered hazardous based on how it acts.
The Resource Conservation and Recovery Act (RCRA) requires all businesses to determine whether the waste generated is hazardous. If it’s a hazardous waste, it’s subject to the RCRA Subtitle C hazardous waste management regulations.
A waste is hazardous if:
Whether or not it’s a listed waste, you must determine if each waste you produce is a characteristic waste.
Let’s take a closer look at each of the four hazardous waste characteristics.
1. Ignitability
Ignitable wastes are easily combustible or flammable. They include:
Common ignitable wastes are paints and degreasers.
2. Corrosivity
Corrosive wastes dissolve metals and other materials. Such wastes include:
Examples are rust removers, certain cleaning fluids, and battery acid.
3. Reactivity
Reactive wastes are unstable wastes that can react rapidly and/or violently when mixed with other materials. These include:
Bleach, peroxide, and lithium-sulfur batteries are considered reactive.
4. Toxicity
Toxic wastes have contaminants that are harmful or fatal through ingestion or skin contact. Improper disposal of toxic wastes can pollute groundwater.
Wastes with any of the contaminants in concentrations at or above the regulatory level specified in the regulations (261.24) are designated as toxic.
Cadmium, lead, and mercury are examples.
The RCRA hazardous waste identification process requires you to determine whether a waste is listed and if it has any hazardous characteristics. That means that regardless of whether the waste is listed, you must determine if the waste has one or more hazardous characteristics.
You may determine if a waste has any hazardous characteristics by:
Use the RCRA Characteristic Hazardous Wastes table as a helpful reference when determining whether a waste has hazardous characteristics.
RCRA Characteristic Hazardous Wastes | ||||
---|---|---|---|---|
Ignitable waste | Corrosive waste | Reactive waste | Toxic waste | |
Description | Easily catches fire and sustains combustion | Readily dissolves metal and other materials | Quickly reacts violently or explodes | Excessively leaches dangerous contaminants |
EPA Hazardous Waste Number(s) | D001 | D002 | D003 | D004–D043* |
Approved SW-846 Test Methods |
|
|
|
|
Regulation (40 CFR Part 261) | 261.21 | 261.22 | 261.23 | 261.24 |
* “Table 1 — Maximum Concentration of Contaminants for the Toxicity Characteristic” at 261.24 lists the EPA Hazardous Waste Number for each contaminant. |
Consider these RCRA reminders when designating waste:
All nonexempt characteristic hazardous waste that your facility generates is subject to RCRA’s Subtitle C hazardous waste management requirements.
Key to remember: Wastes that exhibit any of the four hazardous characteristics (ignitability, corrosivity, reactivity, and toxicity) are subject to RCRA Subtitle C regulations.
The Environmental Protection Agency (EPA) limits the pollutants in industrial wastewater that facilities can release through the National Pollutant Discharge Elimination System (NPDES) Program. Any facility that discharges pollutants directly into the waters of the United States must obtain an NPDES permit.
Each permit lists the quantity, discharge rate, and concentration discharge limits for each pollutant (known as effluent limitations). The permit also covers monitoring and reporting requirements, applicable special conditions (like compliance schedules), and standard conditions that apply to all permits. States typically issue NPDES permits. EPA issues the federal permit, called the Multi-Sector General Permit (or MSGP), for just a handful of states and territories.
The federal regulation at 40 CFR 122.1(b)(1) states that the NPDES program requires permits for the discharge of “pollutants” from any “point source” into “waters of the United States."
To determine whether your facility requires a permit, answer the following three questions.
The NPDES permit covers any kind of industrial, municipal, and agricultural waste that’s discharged into waters of the United States. It encompasses:
EPA’s regulatory definition of “pollutants” (122.2) includes solid waste, sewage, chemical wastes, heat, rock, and more. However, it excludes sewage from vessels as well as certain materials injected into wells for oil or gas production and water derived from oil or gas production that’s disposed of in a well.
If your facility releases pollutants through its wastewater, the next factor to consider is how it discharges the pollutants.
A “point source” is defined at 122.2 as “any discernible, confined, and discrete conveyance … from which pollutants are or may be discharged.” It doesn’t include return flows from irrigated agriculture or agricultural stormwater runoff.
In clearer terms, a point source is a specific, identifiable source that discharges pollutants directly into a waterbody, like an industrial facility. Examples of points of discharge are pipes, ditches, tunnels, wells, and containers.
What if your facility discharges wastewater pollutants to a publicly owned treatment works facility? In this case, your facility is considered a non-point source (or indirect discharger) and must meet the requirements of the NPDES National Pretreatment Program.
EPA’s current regulations define “waters of the United States” at 120.2. However, ongoing litigation has muddied the implementation of the current definition.
Here’s a general timeline of the definition’s changes:
Currently, EPA implements the definition according to the Revised Definition of “Waters of the United States, Conforming” rule in 23 states, the District of Columbia, and the U.S. territories. In the remaining 27 states, EPA implements the pre-2015 definition and interprets it consistently with the Sackett v. EPA decision.
Make sure to confirm with your state’s wastewater permitting agency which definition of waters of the United States applies to your facility.
If you answer “yes” to all three questions, your facility must obtain an NPDES permit.
Now that you’ve determined your facility needs an NPDES permit, it’s time to apply for one:
Key to remember: Facilities must obtain a general or individual NPDES permit before directly discharging industrial wastewater into waters of the United States.
The Environmental Protection Agency (EPA) published the final Third Rule on July 26, 2024, revising hazard waste export manifest regulations under the Resource Conservation and Recovery Act (RCRA). All hazardous waste shipments (regardless of destination) and manifest-related reports will be managed electronically through the e-Manifest program, EPA’s national system that tracks hazardous waste shipments.
Hazardous waste export manifests
Export manifests track hazardous waste that’s shipped out of the country for treatment, storage, and disposal. The final rule integrates hazardous waste export manifests into the e-Manifest system and designates the exporter as the entity responsible for submitting the manifest and paying the requisite user fee.
EPA’s Third Rule also:
Manifest-related reports
The final rule integrates other reports into the e-Manifest system, including:
Further, small and large quantity generators must register for e-Manifest access to obtain their final signed manifest copies from the system.
Other changes
The final rule aligns the manifest requirements for polychlorinated biphenyls (or PCBs) under the Toxic Substances Control Act with the RCRA manifest regulations. It also removes outdated requirements, fixes typographical errors, provides clear definitions, and ensures better alignment with the e-Manifest program.
The final Third Rule takes effect on January 22, 2025. However, these requirements don’t take effect until December 1, 2025:
Meanwhile, organizations must comply with existing hazardous waste manifest requirements through November 30, 2025.
Key to remember: EPA’s final Third Rule combines hazardous waste export manifests and related reports into the e-Manifest system. All hazardous waste shipments (regardless of destination) and manifest-related reports will be managed electronically.
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 63
[EPA-HQ-OAR-2005-0155; FRL-8391-02-OAR]
RIN 2060-AV44
National Perchloroethylene Air Emission Standards for Dry Cleaning Facilities Technology Review
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
SUMMARY: The U.S. Environmental Protection Agency (EPA) is proposing amendments to the National Emission Standards for Hazardous Air Pollutants (NESHAP) for dry cleaning facilities using perchloroethylene (PCE) as the cleaning solvent (PCE Dry Cleaning NESHAP). The proposed amendments address the results of the technology review for the PCE Dry Cleaning NESHAP, in accordance with section 112 of the Clean Air Act (CAA). Based on the findings of the technology review, the EPA proposes to add provisions to the rule which will require all dry-to-dry machines at existing major and area sources to have both refrigerated condensers and carbon adsorbers as secondary controls.
DATES: Comments must be received on or before February 10, 2022.
Public hearing: If anyone contacts us requesting a public hearing on or before January 11, 2022, we will hold a virtual public hearing. See SUPPLEMENTARY INFORMATION for information on requesting and registering for a public hearing.
ADDRESSES: You may send comments, identified by Docket ID No. EPA-HQ-OAR-2005-0155, by any of the following methods:
Instructions: All submissions received must include the Docket ID No. for this rulemaking. Comments received may be posted without change to https://www.regulations.gov/, including any personal information provided. For detailed instructions on sending comments and additional information on the rulemaking process, see the SUPPLEMENTARY INFORMATION section of this document. Out of an abundance of caution for members of the public and our staff, the EPA Docket Center and Reading Room are open to the public by appointment only to reduce the risk of transmitting COVID-19. Our Docket Center staff also continues to provide remote customer service via email, phone, and webform. Hand deliveries and couriers may be received by scheduled appointment only. For further information on EPA Docket Center services and the current status, please visit us online at https://www.epa.gov/dockets.
FOR FURTHER INFORMATION CONTACT:
For questions about this proposed action, contact Brian Storey, Sector Policies and Programs Division (Mail Code D243-04), Office of Air Quality Planning and Standards, U.S. Environmental Protection Agency, Research Triangle Park, North Carolina 27711; telephone number: (919) 541-1103; fax number: (919) 541-4991; and email address: brian.storey@epa.gov.
SUPPLEMENTARY INFORMATION:
Participation in virtual public hearing. Please note that because of current Centers for Disease Control and Prevention (CDC) recommendations, as well as state and local orders for social distancing to limit the spread of COVID-19, the EPA cannot hold in-person public meetings at this time.
To request a virtual public hearing, contact the public hearing team at (888) 372-8699 or by email at SPPDpublichearing@epa.gov. If requested, the virtual hearing will be held on January 11, 2022. The hearing will convene at 9:00 a.m. Eastern Time (ET) and will conclude at 3:00 p.m. ET. The EPA may close a session 15 minutes after the last pre-registered speaker has testified if there are no additional speakers. The EPA will announce further details at https://www.epa.gov/stationary-sources-air-pollution/dry-cleaning-facilities-national-perchloroethylene-air-emission.
If a public hearing is requested, the EPA will begin pre-registering speakers for the hearing upon publication of this document in the Federal Register . To register to speak at the virtual hearing, please use the online registration form available at https://www.epa.gov/stationary-sources-air-pollution/dry-cleaning-facilities-national-perchloroethylene-air-emission or contact the public hearing team at (888) 372-8699 or by email at SPPDpublichearing@epa.gov. The last day to pre-register to speak at the hearing will be January 10, 2022. Prior to the hearing, the EPA will post a general agenda that will list pre-registered speakers in approximate order at: https://www.epa.gov/stationary-sources-air-pollution/dry-cleaning-facilities-national-perchloroethylene-air-emission.
The EPA will make every effort to follow the schedule as closely as possible on the day of the hearing; however, please plan for the hearings to run either ahead of schedule or behind schedule.
Each commenter will have 5 minutes to provide oral testimony. The EPA encourages commenters to provide the EPA with a copy of their oral testimony electronically (via email) by emailing it to brian.storey@epa.gov. The EPA also recommends submitting the text of your oral testimony as written comments to the rulemaking docket.
The EPA may ask clarifying questions during the oral presentations but will not respond to the presentations at that time. Written statements and supporting information submitted during the comment period will be considered with the same weight as oral testimony and supporting information presented at the public hearing.
Please note that any updates made to any aspect of the hearing will be posted online at https://www.epa.gov/stationary-sources-air-pollution/dry-cleaning-facilities-national-perchloroethylene-air-emission. While the EPA expects the hearing to go forward as set forth above, please monitor our website or contact the public hearing team at (888) 372-8699 or by email at SPPDpublichearing@epa.gov to determine if there are any updates. The EPA does not intend to publish a document in the Federal Register announcing updates.
If you require the services of a translator or special accommodation such as audio description, please pre-register for the hearing with the public hearing team and describe your needs by January 3, 2022. The EPA may not be able to arrange accommodations without advanced notice.
Docket. The EPA has established a docket for this rulemaking under Docket ID No. EPA-HQ-OAR-2005-0155. All documents in the docket are listed in https://www.regulations.gov/. Although listed, some information is not publicly available, e.g., Confidential Business Information (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. With the exception of such material, publicly available docket materials are available electronically in Regulations.gov .
Instructions. Direct your comments to Docket ID No. EPA-HQ-OAR-2005-0155. The EPA's policy is that all comments received will be included in the public docket without change and may be made available online at https://www.regulations.gov/, including any personal information provided, unless the comment includes information claimed to be CBI or other information whose disclosure is restricted by statute. Do not submit electronically any information that you consider to be CBI or other information whose disclosure is restricted by statute. This type of information should be submitted by mail as discussed below.
The EPA may publish any comment received to its public docket. Multimedia submissions (audio, video, etc.) must be accompanied by a written comment. The written comment is considered the official comment and should include discussion of all points you wish to make. The EPA will generally not consider comments or comment contents located outside of the primary submission ( i.e., on the Web, cloud, or other file sharing system). For additional submission methods, the full EPA public comment policy, information about CBI or multimedia submissions, and general guidance on making effective comments, please visit https://www.epa.gov/dockets/commenting-epa-dockets.
The https://www.regulations.gov/ website allows you to submit your comment anonymously, which means the EPA will not know your identity or contact information unless you provide it in the body of your comment. If you send an email comment directly to the EPA without going through https://www.regulations.gov/, your email address will be automatically captured and included as part of the comment that is placed in the public docket and made available on the internet. If you submit an electronic comment, the EPA recommends that you include your name and other contact information in the body of your comment and with any digital storage media you submit. If the EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, the EPA may not be able to consider your comment. Electronic files should not include special characters or any form of encryption and be free of any defects or viruses. For additional information about the EPA's public docket, visit the EPA Docket Center homepage at https://www.epa.gov/dockets.
Due to public health concerns related to COVID-19, the Docket Center and Reading Room are open to the public by appointment only. Our Docket Center staff also continues to provide remote customer service via email, phone, and webform. Hand deliveries or couriers will be received by scheduled appointment only. For further information and updates on EPA Docket Center services, please visit us online at https://www.epa.gov/dockets.
The EPA continues to carefully and continuously monitor information from the CDC, local area health departments, and our federal partners so that we can respond rapidly as conditions change regarding COVID-19.
Submitting CBI. Do not submit information containing CBI to the EPA through https://www.regulations.gov/ or email. Clearly mark the part or all of the information that you claim to be CBI. For CBI information on any digital storage media that you mail to the EPA, mark the outside of the digital storage media as CBI and then identify electronically within the digital storage media the specific information that is claimed as CBI. In addition to one complete version of the comments that includes information claimed as CBI, you must submit a copy of the comments that does not contain the information claimed as CBI directly to the public docket through the procedures outlined in Instructions above. If you submit any digital storage media that does not contain CBI, mark the outside of the digital storage media clearly that it does not contain CBI. Information not marked as CBI will be included in the public docket and the EPA's electronic public docket without prior notice. Information marked as CBI will not be disclosed except in accordance with procedures set forth in 40 Code of Federal Regulations (CFR) part 2. Send or deliver information identified as CBI only to the following address: OAQPS Document Control Officer (C404-02), OAQPS, U.S. Environmental Protection Agency, Research Triangle Park, North Carolina 27711, Attention Docket ID No. EPA-HQ-OAR-2005-0155. Note that written comments containing CBI and submitted by mail may be delayed and no hand deliveries will be accepted.
Preamble acronyms and abbreviations. Throughout this document wherever “we,” “us,” or “our” is used, it is intended to refer to the EPA. We use multiple acronyms and terms in this preamble. While this list may not be exhaustive, to ease the reading of this preamble and for reference purposes, the EPA defines the following terms and acronyms here:
CAA Clean Air Act
CBI Confidential Business Information
CDC Center for Disease Control
CFR Code of Federal Regulations
ECHO Enforcement and Compliance History Online
EPA Environmental Protection Agency
EJ environmental justice
FR Federal Register
GACT generally available control technology
HAP hazardous air pollutant(s)
LDAR leak detection and repair
MACT maximum achievable control technology
NAICS North American Industry Classification System
NESHAP national emission standards for hazardous air pollutants
NTTAA National Technology Transfer and Advancement Act
OAQPS Office of Air Quality Planning and Standards
OECA Office of Enforcement and Compliance Assurance
OMB Office of Management and Budget
ORCR Office of Resource Conservation and Recovery
PCE perchloroethylene
ppm parts per million
PRA Paperwork Reduction Act
RBLC RACT/BACT/LAER Clearinghouse
RCRA Resource Conservation and Recovery Act
RFA Regulatory Flexibility Act
SBA Small Business Administration
SBEAP Small Business Environmental Assistance Program
tpy tons per year
TTN Technology Transfer Network
UMRA Unfunded Mandate Reform Act
Organization of this document. The information in this preamble is organized as follows:
I. General Information
A. Does this action apply to me?
B. Where can I get a copy of this document and other related information?
II. Background
A. What is the statutory authority for this action?
B. What are these source categories and how does the current NESHAP regulate their HAP emissions?
C. What data collection activities were conducted to support this action?
D. What other relevant background information and data are available?
E. How does the EPA perform the technology review?
III. Proposed Rule Summary and Rationale
A. What are the results and proposed decisions based on our technology review, and what is the rationale for those decisions?
B. What compliance dates are we proposing, and what is the rationale for the proposed compliance dates?
IV. Summary of Cost, Environmental, and Economic Impacts
A. What are the affected sources?
B. What are the air quality impacts?
C. What are the cost impacts?
D. What are the economic impacts?
E What are the benefits?
F. What analysis of environmental justice did we conduct?
V. Request for Comments
VI. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory Planning and Review and Executive Order 13563: Improving Regulation and Regulatory Review
B. Paperwork Reduction Act (PRA)
C. Regulatory Flexibility Act (RFA)
D. Unfunded Mandates Reform Act (UMRA)
E. Executive Order 13132: Federalism
F. Executive Order 13175: Consultation and Coordination With Indian Tribal Governments
G. Executive Order 13045: Protection of Children From Environmental Health Risks and Safety Risks
H. Executive Order 13211: Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use
I. National Technology Transfer and Advancement Act (NTTAA)
J. Executive Order 12898: Federal Actions To Address Environmental Justice in Minority Populations and Low-Income Populations
I. General Information
A. Does this action apply to me?
The standards in 40 CFR part 63, subpart M, apply to industrial and commercial dry cleaning facilities that use PCE. The North American Industry Classification System (NAICS) codes applicable to 40 CFR part 63, subpart M, are 812310 (coin-operated laundries and dry cleaners), 812320 (dry cleaning and laundry services other than coin-operated services), and 812332 (industrial launderers). This list of categories and NAICS codes is not intended to be exhaustive, but rather provides a guide for readers regarding the entities that this proposed action are likely to affect.
As defined in the Initial List of Categories of Sources Under Section 112(c)(1) of the Clean Air Act Amendments of 1990 (see 57 FR 31576, July 16, 1992) and Documentation for Developing the Initial Source Category List, Final Report ( see EPA-450/3-91-030, July 1992), the PCE dry cleaning source categories include any facility engaged in cleaning soiled apparel, leather, and other fine goods. These are usually small independently operated neighborhood shops, franchise shops, and small specialty shops. The source categories only include facilities that use PCE as a cleaning agent.
Federal, state, local, and tribal government entities would not be affected by this proposed action.
B. Where can I get a copy of this document and other related information?
In addition to being available in the docket, an electronic copy of this action is available on the internet. Following signature by the EPA Administrator, the EPA will post a copy of this proposed action at https://www.epa.gov/dry-cleaning-facilities-national-perchloroethylene-air-emission. Following publication in the Federal Register , the EPA will post the Federal Register version of the proposal and key technical documents at this same website.
A redline version of the regulatory language that incorporates the proposed changes is available in the docket for this action (Docket ID No. EPA-HQ-OAR-2005-0155).
II. Background
A. What is the statutory authority for this action?
The statutory authority for this action is provided by sections 112 and 301 of the Clean Air Act (CAA), as amended (42 U.S.C. 7401 et seq. ). Section 112 of the CAA establishes a two-stage regulatory process to develop standards for emissions of hazardous air pollutants (HAP) from stationary sources. Generally, the first stage involves establishing technology-based standards and the second stage involves evaluating those standards that are based on maximum achievable control technology (MACT) to determine whether additional standards are needed to address any remaining risk associated with HAP emissions. This second stage is commonly referred to as the “residual risk review.” In addition to the residual risk review, the CAA also requires the EPA to review MACT and generally available control technology (GACT) standards set under CAA section 112 every 8 years and revise the standards as necessary taking into account developments in practices, processes, or control technologies. This review is commonly referred to as the “technology review,” and is the subject of this proposal. The discussion that follows identifies the most relevant statutory sections and briefly explains the contours of the methodology used to implement these statutory requirements. A more comprehensive discussion appears in the document titled CAA Section 112 Risk and Technology Reviews: Statutory Authority and Methodology, in the docket for this rulemaking.
In the first stage of the CAA section 112 standard setting process, the EPA promulgates technology-based standards under CAA section 112(d) for categories of sources identified as emitting one or more of the HAP listed in CAA section 112(b). Sources of HAP emissions are either major sources or area sources, and CAA section 112 establishes different requirements for major source standards and area source standards. “Major sources” are those that emit or have the potential to emit 10 tons per year (tpy) or more of a single HAP or 25 tpy or more of any combination of HAP. All other sources are “area sources.” For major sources, CAA section 112(d)(2) provides that the technology-based NESHAP must reflect the maximum degree of emission reductions of HAP achievable (after considering cost, energy requirements, and non-air quality health and environmental impacts). These standards are commonly referred to as MACT standards. CAA section 112(d)(3) also establishes a minimum control level for MACT standards, known as the MACT “floor.” In certain instances, as provided in CAA section 112(h), the EPA may set work practice standards in lieu of numerical emission standards. The EPA must also consider control options that are more stringent than the floor. Standards more stringent than the floor are commonly referred to as “beyond-the-floor” standards. For area sources, CAA section 112(d)(5) allows the EPA to set standards based on GACT standards in lieu of MACT standards. For categories of major sources and any area source categories subject to MACT standards, the second stage in standard-setting focuses on identifying and addressing any remaining ( i.e., “residual”) risk pursuant to CAA section 112(f) and concurrently conducting a technology review pursuant to CAA section 112(d)(6). For categories of area sources subject to GACT standards, there is no requirement to address residual risk, but, similar to the major source categories, the technology review is required.
CAA section 112(d)(6) requires the EPA to review standards promulgated under CAA section 112 and revise them “as necessary (taking into account developments in practices, processes, and control technologies)” no less often than every 8 years. In conducting this review, which we call the “technology review,” the EPA is not required to recalculate the MACT floors that were established in earlier rulemakings. Natural Resources Defense Council (NRDC) v. EPA, 529 F.3d 1077, 1084 (D.C. Cir. 2008). Association of Battery Recyclers, Inc. v. EPA, 716 F.3d 667 (D.C. Cir. 2013). The EPA may consider cost in deciding whether to revise the standards pursuant to CAA section 112(d)(6). The EPA is required to address regulatory gaps, such as missing standards for listed air toxics known to be emitted from the source category, and any new MACT standards must be established under CAA sections 112(d)(2) and (3), or, in specific circumstances, CAA sections 112(d)(4) or (h). Louisiana Environmental Action Network (LEAN) v. EPA, 955 F.3d 1088 (D.C. Cir. 2020).
B. What are these source categories and how does the current NESHAP regulate their HAP emissions?
The PCE Dry Cleaning NESHAP was originally promulgated September 22, 1993 (58 FR 49376) as 40 CFR part 63, subpart M. Significant amendments were promulgated on June 3, 1996 (61 FR 27788), December 14, 1999 (64 FR 69643), July 27, 2006 (71 FR 42743), and July 11, 2008 (73 FR 39871). The PCE Dry Cleaning NESHAP includes MACT standards which apply to major sources, and GACT standards which apply to area sources of dry cleaning that use the chemical PCE. The PCE Dry Cleaning NESHAP regulates PCE emitted from the dry cleaning process.
Dry cleaning is any cleaning process for clothing and other garments using a solvent other than water. PCE, also known as perc, tetrachloroethene, or tetrachloroethylene has been, historically, the most widely used liquid solvent in dry cleaning. Dry cleaning facilities may provide dry cleaning and laundering services at the location, or the facility may be a drop-off only location that transports the garments to a separate location where the cleaning is performed. Establishments may also offer specialty cleaning services for garments and textiles such as fur, leather, suede, wedding gowns, draperies, and pillows.
PCE dry cleaning machines are classified into two types: Transfer and dry-to-dry. Similar to residential washing machines and dryers, transfer machines include a unit for washing and another unit for drying. Following the wash cycle, PCE-containing articles are manually transferred from the washer to the dryer. The transfer of wet fabrics is the predominant source of PCE emissions in these systems. Transfer machines are prohibited at all existing and new major and area sources due to the NESHAP's requirement that dry cleaning systems eliminate any emissions of PCE while transferring articles between the washer and the dryer or reclaimer. Therefore, transfer machines are no longer sold, and none are known to still be in operation as these machines have reached the end of their useful lives and should have been replaced by dry-to-dry machines. Dry-to-dry machines wash, extract, and dry the articles in a single machine. The articles enter and exit the machine dry. Because the transfer step is eliminated, dry-to-dry machines have much lower emissions than transfer machines.
“Fourth generation” dry-to-dry machines were introduced in the early 1990s. A fourth generation dry-to-dry machine is a closed-loop system that uses a refrigerated condenser(s) to recycle PCE from the wash cycle, and a carbon adsorption unit(s) to filter PCE from the drum at the end of the dry cycle. The refrigerated condenser is a vapor recovery system into which an air-PCE gas-vapor stream is routed and the PCE is condensed by cooling the gas-vapor stream. The air remaining in the machine at the end of the dry cleaning cycle then passes through a carbon adsorber prior to opening the machine door. The carbon adsorber is a bed of activated carbon into which the air-PCE gas-vapor stream is routed and PCE is adsorbed on the carbon. The use of the carbon adsorber in combination with the refrigerated condenser offers greater emissions reductions over a dry-to-dry machine equipped with only a refrigerated condenser because it reduces the PCE concentration in the air remaining in the machine once the dry cleaning cycle is complete instead of allowing those vapors to be vented or released at the end of the dry cleaning cycle.
The latest generation machines, or “fifth generation” machines were introduced in the late 1990s. They have the same control technology as fourth generation machines, but they are also equipped with an inductive fan, internal solvent vapor monitoring devices (sensor), and interlock (lockout) devices that will not allow access to the machine until solvent vapor concentrations are below 300 ppm. The lockout feature ensures that the PCE set-point has been attained before the machine door can be opened, but it does not remove additional PCE.
Per 40 CFR 63.320, a dry cleaning facility is a major source if the facility emits or has the potential to emit more than 10 tons per year of PCE to the atmosphere. A dry cleaning facility is considered an area source if it does not meet the criteria for major sources, as specified in 40 CFR 63.320. However, in lieu of measuring or determining a facility's potential to emit PCE emissions, a dry cleaning facility is a major source if: (1) It includes only dry-to-dry machine(s) and has a total yearly PCE consumption greater than 2,100 gallons as determined according to 40 CFR 63.323(d); or (2) it includes only transfer machine system(s) or both dry-to-dry machine(s) and transfer machine system(s) and has a total yearly PCE consumption greater than 1,800 gallons as determined according to 40 CFR 63.323(d).
As defined by the initial list of source categories publish on July 16, 1992 (57 FR 31576), the PCE Dry Cleaning NESHAP applies to the following major and area sources of HAP emissions:
Major Source Categories
Area Source Categories
In general, the PCE Dry Cleaning NESHAP affects three types of dry cleaners that use PCE: Commercial, industrial, and co-residential. Commercial facilities clean household items such as suits, dresses, coats, pants, comforters, curtains, leather clothing, and formal wear. Industrial dry cleaners clean heavily stained articles such as work gloves, uniforms, mechanics' overalls, mops, and shop rags. Co-residential facilities are usually a subset of commercial operations and include dry cleaning operations located in buildings in which people reside. Co-residential facilities are generally found in urban areas where commercial and residential occupancy occur in a single building.
The PCE Dry Cleaning NESHAP identifies all major sources as “large” industrial and commercial dry cleaners. These dry cleaners are subject to MACT standards under this NESHAP. It is estimated that there are five or fewer of these major source dry cleaners remaining in the United States. 1 The PCE Dry Cleaning NESHAP requires new major source PCE dry cleaners operating dry-to-dry machines to:
1 Estimated quantity of major source PCE dry cleaners is based on details provided to EPA by state regulators, state small business environmental assistance providers' programs (SBEAP) personnel, and industry trade association representatives. Refer to the docket for this proposed rule (Docket ID No. EPA-HQ-OAR-2005-0155).
The PCE Dry Cleaning NESHAP requires existing major source PCE dry cleaners operating dry-to-dry machines to:
Dry cleaners that are commonly found in community settings ( e.g., shopping centers and strip malls) are typically “area sources,” meaning they emit less than 10 tons of PCE each year, and are smaller in size in comparison to major source industrial and commercial PCE dry cleaners. The PCE Dry Cleaning NESHAP standards for these area sources are GACT standards. The PCE Dry Cleaning NESHAP requires existing area source PCE dry cleaners operating dry-to-dry machines to:
New area source PCE dry cleaners operating dry-to-dry machines must:
The 2006 amendments to the PCE Dry Cleaning NESHAP eliminated the use of PCE by dry cleaners in co-residential buildings ( e.g., a dry cleaner found on the ground floor of an apartment building). EPA recognized that because co-residential dry cleaners are located very close to residences, residents' exposures and their cancer risks could be much higher than for typical area source dry cleaners. As such, the PCE Dry Cleaning NESHAP includes requirements to eliminate risks associated with PCE emissions from co-residential dry cleaners. Under 40 CFR 63.322(o)(5)(i), owners/operators were required to eliminate any PCE emissions from systems located in residential buildings by December 21, 2020. These dry cleaner owner/operators were allowed to replace PCE machines with newer available non-PCE technology. This sunset date allowed owners of existing co-residential sources to operate their machines for their maximum estimated useful life, 15 years, assuming they were first installed no later than December 21, 2005. Additionally, under 40 CFR 63.320(b)(2)(ii) and 63.322(o)(5)(ii), any PCE dry cleaning machines in co-residential buildings that began operating between December 21, 2005 and July 13, 2006, were required to install equipment to aggressively control PCE emissions ( i.e., refrigerated condensers, carbon adsorbers, and vapor barriers), and to conduct weekly inspections to detect PCE leaks, repair the leaks, and maintain records, before eliminating PCE emissions by July 27, 2009.
Petitions for judicial review of the 2006 amendments to the NESHAP were filed by the Sierra Club, Halogenated Solvents Industry, Neighborhood Cleaners Association, International Fabricare Institute, and Textile Care Allied Trades Association. Sierra Club et al. v. USEPA, No. 06-1330 (and consolidated cases) (D.C. Cir.). Petitioners questioned: Whether the EPA reasonably interpreted CAA section 112(d)(6) to allow consideration of risk and costs as factors in determining the extent to which it was necessary to revise standards regulating PCE; whether EPA reasonably determined under section 112(d)(6) that it was necessary to revise standards regulating PCE, and to require elimination of PCE emissions at co-residential systems but not at other systems; whether the EPA had complied with the Regulatory Flexibility Act (RFA); and whether EPA had reasonably denied a petition for reconsideration of the rule submitted by the Sierra Club. Although the case was fully briefed, in 2009 before it could be argued at the D.C. Circuit, the parties agreed to EPA taking a voluntary remand of the rule in order for the then-new administration to consider whether further administrative action was warranted regarding the challenged issues, while leaving the rule in force. As discussed in section III.A of this preamble, we are proposing our response to the voluntary remand as part of this proposal.
C. What data collection activities were conducted to support this action?
For this technology review, the EPA investigated developments in practices, processes, and control technologies through communications and direct discussions with state agencies (including regional, state, and local regulators), Small Business Environmental Assistance Program (SBEAP) personnel, industry stakeholders, and trade association representatives. Details of these conversations are included in the memorandum titled Technology Review for the PCE Dry Cleaning NESHAP, December 2021, available in the docket for this action (Docket ID No. EPA-HQ-OAR-2005-0155).
We performed a search of the EPA's Technology Transfer Network (TTN) Clean Air Technology Center—RACT/BACT/LAER Clearinghouse (RBLC) database. The RBLC provides several options for searching the permit database on-line to locate applicable control technologies. We searched the RBLC database for specific dry cleaning process types (“49.002—Dry Cleaning, PERC/Chlorinated Solvents” and “49.003—Dry Cleaning, Petroleum Solvents”). In querying results dating back to January 1, 2000, no results were returned when searching for Process Type 49.002 and three results were returned for Process Type 49.003, however none of the information returned was more recent than 2005 or included any new or improved control technologies. In addition to searches conducted using the process type codes above, the RBLC was queried for any sources with “cleaning”, “cleaners”, or “dry cleaning” in their name. The NAICS and SIC codes for dry cleaners, 812320 and 7216, respectively, were also used to search the RBLC. None of these searches returned relevant information on new or improved control technologies used in dry cleaning facilities. Full details of the RBLC database search in support of this technology review are included in the memorandum titled Technology Review for the PCE Dry Cleaning NESHAP, December 2021, available in the docket for this action (Docket ID No. EPA-HQ-OAR-2005-0155).
The EPA also reviewed information and details for facilities that are subject to the PCE Dry Cleaning NESHAP using the Agency's Enforcement and Compliance History Online (ECHO) database. The ECHO database provides integrated compliance and enforcement information for approximately 800,000 regulated facilities nationwide. Using the features in the ECHO database, we searched for dry cleaning facilities by NAICS. The database identified approximately 7,900 facilities. However, these data are not likely to be comprehensive for the dry cleaning source category because not all states submit data on smaller sources to ECHO. Details of the ECHO database search in support of this technology review are included in the memorandum titled Technology Review for the PCE Dry Cleaning NESHAP, December 2021, available in the docket for this action (Docket ID No. EPA-HQ-OAR-2005-0155).
D. What other relevant background information and data are available?
To supplement the information collected from the ECHO search, the EPA collected information from the EPA's Office of Resource Conservation and Recovery (ORCR) hazardous waste generator databases. ORCR is responsible for implementation and oversight of the hazardous waste program required by subtitle C of the Resource Conservation and Recovery Act (RCRA). As part of the hazardous waste program, hazardous waste generators must report hazardous waste quantities about a specified threshold, as required by RCRA, subtitle C. Active PCE dry cleaning facilities were identified in the ORCR hazardous waste generator databases, based on a search of reported PCE waste generation, and the NAICS for dry cleaning. Approximately 9,000 active hazardous waste generators were identified in the database. This list does not represent the full list of dry cleaning facilities or indicate the number of facilities subject to the PCE Dry Cleaning NESHAP. For many area sources in this source category the amount of PCE waste generated is below the threshold to notify or report under the RCRA regulations, therefore, there are potentially area source dry cleaning facilities that do not generate enough PCE waste to be included in the hazardous waste generator database. In this technology review, the EPA assumes that the total number of dry cleaning facilities is higher than the approximate 9,000 facilities we were able to identify by the RCRA hazardous waste generator database. A copy of the facility list developed for this technology review can be found in the docket (Docket ID No. EPA-HQ-OAR-2005-0155).
E. How does the EPA perform the technology review?
Our technology review primarily focuses on the identification and evaluation of developments in practices, processes, and control technologies that have occurred since the MACT and GACT standards were promulgated. Where we identify such developments, we analyze their technical feasibility, estimated costs, energy implications, and non-air environmental impacts. We also consider the emission reductions associated with applying each development. This analysis informs our decision of whether it is “necessary” to revise the emissions standards. In addition, we consider the appropriateness of applying controls to new sources versus retrofitting existing sources. For this exercise, we consider any of the following to be a “development”:
In addition to reviewing the practices, processes, and control technologies that were considered at the time we originally developed (or last updated) the NESHAP, we review a variety of data sources in our investigation of potential practices, processes, or controls to consider. We also review the NESHAP and the available data to determine if there are any unregulated emissions of HAP within the source category, and evaluate this data for use in developing new emission standards. See sections II.C and II.D of this preamble for information on the specific data sources that were reviewed as part of the technology review.
III. Proposed Rule Summary and Rationale
A. What are the results and proposed decisions based on our technology review, and what is the rationale for those decisions?
This section provides a brief discussion of our review of the various information sources listed sections II.C and II.D of this preamble, and our proposed decision pursuant to the CAA section 112(d)(6) technology review to require that all PCE dry-to-dry machines at existing major and area sources have both refrigerated condensers and carbon adsorbers as secondary controls. None of the searches of the RBLC database returned relevant information on new or improved control technologies related to reducing HAP emissions from dry cleaning machines used by facilities in the PCE Dry Cleaning source category. To further identify any developments in practices, processes, and emission control technologies and strategies, the EPA held several meetings with state agencies (including state agency representatives and SBEAP personnel), industry stakeholders and trade association representatives. The EPA asked several questions pertaining to developments since the last technology review on July 26, 2006 (71 FR 42724). The responses to this inquiry did not identify any developments in new or improved control technologies that had not previously been identified and considered that would warrant revision to the existing emission standards for the PCE dry cleaning source category.
Additionally, web search queries for technical literature pertaining to dry cleaning emissions controls, process controls, and work practices did not identify any new or improved practices, processes, or control technologies that were not previously addressed since the technology review performed in 2006.
However, there have been developments in practices, processes, and control technologies that had been identified and considered at the time of adoption of the original NESHAP and/or of the last technology review in 2006. These developments reflect a widespread transition away from some practices that had been allowed to continue for existing sources but were not permitted for new or reconstructed sources. In this technology review, for example, the EPA confirmed with industry representatives that the useful life of a dry-to-dry machine is 15 years. In accordance with the PCE Dry Cleaning NESHAP, PCE dry cleaning machines installed after 1993 for major sources and 2005 for area sources would be equipped with refrigerated condensers and carbon adsorbers. Therefore, the EPA is proposing to require all sources subject to the PCE Dry Cleaning NESHAP, whether new or existing, to be equipped with refrigerated condensers and carbon adsorbers in order to reflect this development.
Refrigerated condensers and carbon adsorbers have been standard secondary controls on all new machines for the last 15 years. The information gathered during the technology review, including details obtained from PCE dry cleaning industry and trade association representatives, revealed that dry-to-dry non-vented dry cleaning machines with refrigerated condensers and carbon adsorbers are the machines that are overwhelmingly used in PCE dry cleaning operations. These fourth generation and newer machines reuse PCE within the machine, which reduces the PCE emissions from the dry cleaning process. These machines are much more effective at recovering solvent vapors than machines equipped with a carbon adsorber or refrigerated condenser alone. 2
2 Further details on the evolution of dry cleaning machines and detailed descriptions of the generations of these machines can be found in the refer to the Technology Review for the Perchloroethylene Dry Cleaning Source Category memorandum in the docket as well as at the following websites: https://www.cdc.gov/niosh/docs/hazardcontrol/hc18.html ; https://www.enviroforensics.com/blog/the-history-of-dry-cleaning-solvents-and-the-evolution-of-the-dry-cleaning-machine/ .
It has been over 25 years since the initial NESHAP was promulgated in 1993 (58 FR 66287) and 15 years since the last major revisions (71 FR 42724), which required certain machines to be equipped with refrigerated condensers and carbon adsorbers. Even though we expect that almost all currently operating dry cleaning machines have both of these controls, the EPA has determined that we should preclude any possible future use of any machines that do not have both controls. This revision to the standards is necessary to ensure that current improved PCE emissions control achieved by the widespread use of fourth generation (or better) machines is maintained and not compromised by permissible continued operation of earlier generation machines that have exceeded their useful lives. As such, the EPA is proposing to require that all PCE dry-to-dry machines at existing major and area sources have both refrigerated condensers and carbon adsorbers as secondary controls. This revision to the standards will ensure that all dry cleaning systems, both new and existing, will be similarly controlled.
Additionally, the EPA re-examined the use of alternative solvents in use by the dry cleaning industry. This includes the use of non-PCE containing products such as silica-based solvents and high flash point hydrocarbon solvents. As part of this assessment, the EPA reviewed the list of alternative solvents identified in the 2006 PCE Dry Cleaning NESHAP risk and technology review (RTR) (71 FR 42743), and found that, for the purposes of the PCE Dry Cleaning NESHAP MACT or GACT standards, the list of alternative solvents available to the dry cleaning industry remains essentially the same. Since our 2006 assessment, there have been some products that are no longer marketed, and a few products added to the list. In the 2006 PCE Dry Cleaning NESHAP RTR, we looked at the use of alternative solvents as it relates to a potential ban of PCE use. In the 2006 RTR, we identified limitations with the alternative solvents available, when compared to PCE use. These limitations included a comparison of costs, cleaning ability, ease of use, applicability to certain fabrics, safety, and others. After reviewing our assessment made for the 2006 final rule, and the limitations of the alternative solvents available in 2021, we find no new information that would change our 2006 assessment for purposes of the MACT or GACT standards for this industry.
In response to the voluntary remand of the 2006 rule, we are not proposing any amendments addressing the objections raised by the litigants in Sierra Club et al. v. USEPA, No. 06-1330 and consolidated cases (D.C. Cir.). Since the voluntary remand, EPA has conducted numerous subsequent RTRs for other NESHAPs and source categories and has consistently implemented section 112(d)(6) to take into consideration costs of revising standards and the environmental value of requiring additional HAP reductions when determining whether it is necessary to revise standards taking into consideration developments in practices, processes, and control technologies. We also maintain that we have the discretion to qualitatively consider as a relevant factor the benefits of requiring additional HAP emission reductions and their consequential effect on public health risk under 112(d)(6), as we considered them in the 2006 RTR. Although we are not further considering such reductions and their impacts in this current proposed action because we have not received additional information indicating such are necessary for CAA purposes related to dry cleaning sources beyond the review that we conducted in 2006, we stand by the analyses we conducted and conclusions we reached in the 2006 RTR. Moreover, subsequent reviewing courts have affirmed EPA's now well-established approach of considering costs and cost effectiveness in CAA section 112(d)(6) reviews and making judgments about whether to it is necessary to require additional HAP emissions reductions under CAA section 112(d)(6). See, e.g., National Association for Surface Finishing v. EPA, 795 F.3d 11-12 (D.C. Cir. 2015) (finding that EPA permissibly considered costs in revising standards under section 112(d)(6)); see also, Association of Battery Recyclers, et al. v. EPA, 716 F.3d 667, 673-74 (D.C. Cir. 2013) (approving EPA's consideration of cost as a factor in its section 112(d)(6) decision-making and EPA's reliance on cost effectiveness as a factor in its standard-setting). In addressing industry petitioners' challenge to EPA's CAA section 112(d)(6) determinations, the National Association for Surface Finishing court explained that “[r]eductions in emissions are, of course, relevant to the cost effectiveness of emissions-control technologies in controlling emissions.” See 795 F.3d at 12. The court then affirmed that EPA's conclusions “that more stringent technology-based standards were cost effective and otherwise appropriate” was not arbitrary and capricious. Id (emphasis added). The EPA thus maintains that our approach in the 2006 RTR to base our decisions to revise the standards as necessary for dry cleaners located in residential settings, based in part on the unique public health impacts that the additionally mandated HAP reductions would mitigate in that particular context, was warranted under CAA section 112(d)(6).
Consequently, what may have appeared novel in 2006 to the litigants in the earliest stages of the EPA's development of the RTR program (the EPA's consideration of costs and HAP reduction along with the enumerated factors in CAA section 112(d)(6)) has become settled and judicially endorsed practice, and it is not necessary for the EPA to fundamentally re-evaluate that well-established process in this follow-up technology review or in response to the voluntary remand. Moreover, since the 2006 RTR, the EPA has not received any information calling into question the risk-based information that supported our action requiring elimination of PCE emissions from systems located in buildings with a residence. Nor has the EPA received additional information addressing the specific risks presented by PCE emissions to ambient air from co-commercial PCE dry cleaning systems ( e.g., those located in strip malls with adjacently located other commercial entities) that suggest that our decision in 2006 to limit the required elimination of PCE emissions to co-residential settings was unwarranted. The EPA requests public comments on our response to the remand, particularly on our proposed determination that no specific revisions to the standards are necessary in light of the remand.
B. What compliance dates are we proposing, and what is the rationale for the proposed compliance dates?
The EPA is proposing that existing affected sources would comply with the proposed amendments in this rulemaking no later than 180 days after the effective date of the final rule. The affected existing facilities would have to continue to meet the current requirements of 40 CFR part 63, subpart M, until the applicable compliance date of the amended rule. As discussed in section III.B of this preamble, the EPA is proposing to require all dry-to-dry machines at both major and area sources to have both refrigerated condensers and carbon adsorbers as secondary controls. The final action is not expected to be a “major rule” as defined by 5 U.S.C. 804(2). Therefore, the effective date of the final rule would be the promulgation date as specified in CAA section 112(d)(10). From our assessment of the timeframe needed for compliance with the entirety of the revised requirements, the EPA considers a period of 180 days to be the most expeditious compliance period practicable. We base this proposed compliance period on several factors. First, from our discussions with state and local agencies, trade association representatives, and other stakeholders, the EPA found that fourth and fifth generation dry-to-dry machines are standard throughout the industry. Additionally, the EPA confirmed that the useful life of a dry-to-dry machine is 15 years, and that new dry cleaning machines sold in the last 20 years are only fourth and fifth generation machines. Based on these findings, we believe that almost all of the industry is already in compliance with the proposed amendments. The 180 days is provided as a courtesy to allow familiarity with the proposed changes. We solicit comment on this proposed compliance period, and we specifically request submission of information from the sources in the major and area source categories regarding specific actions that would need to be undertaken to comply with the proposed amended requirements and the time needed to make the adjustments for compliance with any of the revised requirements. We note that information provided may result in changes to the proposed compliance date.
IV. Summary of Cost, Environmental, and Economic Impacts
A. What are the affected sources?
The PCE Dry Cleaning NESHAP prescribes a combination of equipment, work practices, and operational requirements. The NESHAP allows regulated sources to determine their major or area source status based on the annual PCE purchases for all machines at a facility. The consumption criterion (which affects the amount of PCE purchased) varies depending on multiple variables, including number of machines, size of business, etc. The affected source is each individual dry cleaning system that uses PCE. Consequently, a single dry cleaning facility could comprise multiple affected sources, if it has multiple dry cleaning systems onsite. As a result, some of a facility's systems could be subject to “new” source requirements under the NESHAP, and some could be “existing” sources, depending upon when they were placed into service.
The July 27, 2006, final rule amendments (71 FR 42743) indicate that at that time, there were approximately 34,000 dry cleaning facilities in the United States, approximately 28,000 of which used PCE. Those estimated counts of the number of overall dry cleaners and PCE dry cleaners are prior to business impacts from the 2008 financial crisis, the coronavirus (COVID-19) pandemic of 2020-2021, recent shifts in consumer demands, changes in garment technologies, fashion trends, dry cleaning machine conversions to alternative solvents, and other factors that have resulted in reductions in the number of PCE dry cleaning operations. Based on information provided by dry cleaning industry stakeholders, including trade organizations, the EPA estimates that the number of PCE dry cleaners decreased by 20 to 30 percent due to the 2008 financial crisis, the aforementioned demand trends in the industry, and increasing replacements of PCE operations with alternative solvent technologies. Additionally, the EPA estimates that another 10 to 15 percent of PCE dry cleaners have ceased operation due to financial impacts from the COVID-19 pandemic. As such, the EPA estimates that there are approximately 10,000 to 15,000 PCE dry cleaning facilities in the U.S.
B. What are the air quality impacts?
The EPA is proposing that all PCE dry-to-dry machines operate with both refrigerated condensers and carbon adsorbers as secondary controls ( i.e., be fourth or fifth generation machines). The PCE dry cleaning facilities that are in operation have most likely realized the reduction in emissions associated with operating both refrigerated condensers and carbon adsorbers. Additionally, any new machines have been required to have both refrigerated condensers and carbon adsorbers since the original promulgation of part 63, subpart M, in 1993 (for major sources) and the 2006 RTR (for area sources); any existing third generation or older machines at the time of those rules are now beyond their 15-year expected lifespan. For those facilities who may still be operating older machines, the proposed amendments of this rulemaking would reduce emissions by mandating the use of newer machines with the required controls.
Indirect or secondary air emissions impacts are impacts that would result from the increased electricity usage associated with the operation of control devices ( i.e., increased secondary emissions of criteria pollutants from power plants). Energy impacts consist of the electricity and steam needed to operate control devices and other equipment that would be required under this proposed rule. The EPA expects minimal secondary air emissions impacts or energy impacts from this rulemaking.
C. What are the cost impacts?
Any new PCE dry-to-dry machines purchased in the last 20 years for this source category are closed-loop dry-to-dry machines with a refrigerated condenser and a carbon adsorber 3 and thus would not be impacted by these proposed amendments. The PCE dry cleaning operations that would be impacted by the proposed amendments would most likely already have incurred the costs of installing and operating these fourth-generation machines. Specifically, any older machines ( i.e., third generation or prior transfer machines or dry-to-dry machines without refrigerated condenser and a carbon adsorber) would now be beyond their projected useful life, and we expect that operators would have already replaced these machines with fourth- and fifth-generation machines, as part of continued PCE dry cleaning operations. However, we also recognize that there may be some facilities that are still operating older PCE machines. We expect that if there are any facilities operating older machines, they would be area sources. For reasons previously discussed in section II.C and II.D of this preamble, the number of older machines in use is unknown. The EPA is soliciting comment on the number of sources operating older machines and will reassess the cost and economic impacts if we receive additional data.
3 U.S. EPA, Office of Air Quality Planning and Standards. Phone Conference Communication with Dry Cleaning & Laundry Institute (DLI) and National Cleaners Association (NCA) representatives. March 2021.
Based on available information, the EPA concludes that most or all existing PCE dry cleaning facilities that are subject to the NESHAP would be able to comply with the proposed requirements without incurring additional capital or operational costs because they have purchased newer machines as part of normal business operations. There may be small number of facilities operating older machines, but we do not have information on these facilities to determine the full cost impacts to these entities. We have assessed the costs associated with reading and understanding the proposed amendments as a total one-time cost of $108 per facility, using a labor rate for 4 hours of review time, as described in section IV. D of this preamble. Based on an estimate of 10,000 to 15,000 facilities that are subject to the PCE Dry Cleaning NESHAP, the total cost is estimated to be in a range of $1,080,000 to $1,620,000 nationwide.
D. What are the economic impacts?
Economic impact analyses focus on changes in market prices and output levels. If changes in market prices and output, such as clothes to be cleaned in the primary markets served by dry cleaners, are significant enough, impacts on other markets may also be examined. Both the magnitude of costs needed to comply with a proposed rule and the distribution of these costs among affected facilities can have a role in determining how the market would change in response to a proposed rule. To estimate the economic impacts of this proposal, the EPA reviewed the mean hourly wage of $12.29 per hour indicated by the Bureau of Labor Statistics for laundry and dry cleaning workers in 2021. We then applied a benefits and overhead factor of 1.1 to calculate a total compensation rate of $26.86 per hour. Additionally, we estimated 4 hours for a dry cleaning worker to familiarize themselves with the proposed amendments to the rule, and calculated a cost of $108 per facility ($23.86/hr × 4 hr/facility = $107.44, or $108/facility). This is a conservative estimate. We anticipate that some facilities may not require 4 hours to review the proposed amendments to the rule. These costs are not expected to result in a significant impact to primary markets served by dry cleaners.
We do not anticipate any significant economic impacts from these proposed amendments to require all dry-to-dry machines to have both refrigerated condensers and carbon adsorbers as secondary controls. This is consistent with our assumptions made in the original rule development that the useful life of a machine is 15 years. Machines installed after 1993 for major sources and 2005 for area sources are to be equipped with refrigerated condensers and carbon adsorbers, in accordance with the NESHAP. Thus, given the useful life of a typical dry-cleaning machine, the EPA expects that most or all sources in the regulated source categories would have discontinued use of third generation or older machines by 2021.
E. What are the benefits?
Although the EPA does not anticipate reductions in HAP emissions as a result of the proposed amendments, the Agency believes that the action, if finalized as proposed, would result in improved clarity to the rule. Specifically, the proposed amendments would revise the standards such that it is clear that only fourth (or newer) generation machines can be used in PCE solvent dry cleaning operations. This requirement is implied in the useful life determination at the inception of the original NESHAP; however, this proposed amendment would make this assumption clear and would work to eliminate any older machines (third generation and prior) that could still be operating. This action would further protect public health and the environment and would ultimately result in less potential confusion or misinterpretation by the regulated community.
F. What analysis of environmental justice did we conduct?
Executive Order 12898 directs the EPA, to the greatest extent practicable and permitted by law, to make environmental justice part of its mission by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects of its programs, policies and activities on minority populations and low-income populations in the United States. (59 FR 7629, February 16, 1994.) Additionally, Executive Order 13985 was signed to advance racial equity and support underserved communities through Federal Government actions (86 FR 7009, January 20, 2021). The EPA defines environmental justice (EJ) as the fair treatment and meaningful involvement of all people regardless of race, color, national origin, or income with respect to the development, implementation, and enforcement of environmental laws, regulations, and policies. The EPA further defines the term fair treatment to mean that “no group of people should bear a disproportionate burden of environmental harms and risks, including those resulting from the negative environmental consequences of industrial, governmental, and commercial operations or programs and policies” ( https://www.epa.gov/environmentaljustice ). In recognizing that minority and low-income populations often bear an unequal burden of environmental harms and risks, the EPA continues to consider ways of protecting them from adverse public health and environmental effects of air pollution. To examine the potential for any EJ issues that might be associated with the source categories, we performed a demographic analysis, which is an assessment of individual demographic groups of the populations living within 5 kilometers (km) and within 50 km of the facilities. The EPA then compared the data from this analysis to the national average for the demographic indicators.
In the analysis, we evaluated the percentage of minority and low-income groups within the populations that live near identified PCE dry cleaning facilities. The PCE Dry Cleaning NESHAP applies to sources often operating as small facilities, and limited location data for these small subject facilities were available, adding considerable uncertainty to the analysis. As described in the technology review memorandum, available in the docket for this action, and section II.C of this preamble, we did conduct searches for available information. The demographic results do not account for emission or risk impacts from sources and may not be fully representative of the full distribution of facilities across all locations and populations. This analysis provides an indication of the potential for disparities in human health or environmental effects.
Our analysis includes the general population of dry cleaners across the country and does not differentiate which facilities are PCE major and area source dry cleaners. As stated above, our analysis indicates that sources are likely to operate compliant technologies to meet the proposed standard. Based upon the number of facilities in this analysis (9,080 facilities), we find that approximately 48 percent of the U.S. population lives within 5 km of a facility, and approximately 87 percent live within 50 km of a facility. We find that dry cleaner facilities are generally located in areas where within the 5 km distance the category of minority demographics are higher than the national average, but demographics generally match the national average within 50 km. We also note that demographics analyses for individual urban facilities often show that the percentages of various minority and disadvantaged populations tend to exceed the national averages due to the urban locations. The results of the demographic analysis for populations within 5 km of the facilities within the source category indicate that the percentage of the minority population (the total population minus the white population) is higher when compared to the national percentage of people who are minority (an average of 48 percent versus 40 percent). These comparisons also hold true for other demographic groups (African American, Other and Multiracial Groups, and Hispanics), whose populations near dry cleaning facilities are approximately an average of 3 percent greater the national average. The demographic group composed of people living in linguistic isolation was an average of approximately 1 percent greater than the national average. The percentages of people in all the remaining demographic groups were below the national average for their respective demographic. The methodology and the results of the demographic analysis are presented in a technical report, Technology Review— Analysis of Demographic Factors for Populations Living Near the Dry-cleaners for Major and Area Sources, available in this docket for this action (Docket ID EPA-HQ-OAR-2005-0155).
Notes: | |||
• The population numbers and demographic percentages are based on the Census' 2015-2019 American Community Survey five-year averages and include Puerto Rico. Demographic percentages based on different averages may differ. | |||
• Minority population is the total population minus the white population. | |||
• To avoid double counting, the “Hispanic or Latino” category is treated as a distinct demographic category for these analyses. A person is identified as one of five racial/ethnic categories above: White, African American, Native American, Other and Multiracial, or Hispanic/Latino. A person who identifies as Hispanic or Latino is counted as Hispanic/Latino for this analysis, regardless of what race this person may have also identified as in the Census. | |||
Nationwide | Source category | ||
Population within 50 km of 9,080 facilities | Population within 5 km of 9,080 facilities | ||
Total Population | 328,016,242 | 285,838,206 | 156,313,800 |
White and Minority by Percent | |||
White | 60 | 60 | 52 |
Minority | 40 | 40 | 48 |
Minority by Percent | |||
African American | 12 | 13 | 15 |
Native American | 0.7 | 0.5 | 0.4 |
Hispanic or Latino (includes white and nonwhite) | 19 | 18 | 22 |
Other and Multiracial | 8 | 8 | 11 |
Income by Percent | |||
Below Poverty Level | 13 | 13 | 14 |
Above Poverty Level | 87 | 87 | 86 |
Education by Percent | |||
Over 25 and without a High School Diploma | 12 | 12 | 12 |
Over 25 and with a High School Diploma | 88 | 88 | 88 |
Linguistically Isolated by Percent | |||
Linguistically Isolated | 5 | 5 | 7 |
This action is not likely to change levels of emissions near facilities. Based on our technology review, we did not identify, and are not requiring, any new add-on control technologies, process equipment, work practices or procedures that were not already in place when the NESHAP was promulgated in 1993 or considered when the NESHAP was last reviewed in 2006; and we did not identify other developments in practices, processes, or control technologies that would result in additional emission reductions for purposes of these MACT and GACT standards, beyond the transition to greater use of fourth and fifth generation machines. Given the useful life of a dry cleaning machine, and the fact that industry should already be operating the newer machines with both refrigerated condensers and carbon adsorbers as secondary controls, we do not anticipate reductions in HAP emissions as a result of the proposed amendments.
V. Request for Comments
We solicit comments on this proposed action. In addition to general comments on this proposed action, we are also interested in additional data that may improve the analyses. We are specifically interested in receiving any information regarding the number of third generation and earlier model dry cleaning machines that potentially could still be operating, and on other developments in practices, processes, and control technologies that reduce HAP emissions beyond the widespread shift to fourth generation (or better) machines.
VI. Statutory and Executive Order Reviews
Additional information about these statutes and Executive orders can be found at https://www.epa.gov/laws-regulations/laws-and-executive-orders.
A. Executive Order 12866: Regulatory Planning and Review and Executive Order 13563: Improving Regulation and Regulatory Review
This action is not a significant regulatory action and was, therefore, not submitted to OMB for review.
B. Paperwork Reduction Act (PRA)
This action does not impose an information collection burden under the PRA. The action does not contain any information collection activities.
C. Regulatory Flexibility Act (RFA)
I certify that this action will not have a significant economic impact on a substantial number of small entities under the RFA. The small entities subject to the requirements of this action are industrial and commercial dry cleaning facilities that use PCE. The North American Industry Classification System (NAICS) codes applicable to 40 CFR part 63, subpart M, are 812310 (coin-operated laundries and dry cleaners), 812320 (dry cleaning and laundry services other than coin-operated services), and 812332 (industrial launderers). The small business size definitions for those industries are $8.0 million, $6.0 million, and $41.5 million respectively. The costs associated with reading and understanding the proposed amendments are a one-time cost of $108 per facility and are not significant. In addition, the useful life of a PCE dry-to-dry machine is assumed to be 15 years, and the industry has already purchased fourth or fifth generation dry-to-dry machines that are in compliance with these amendments as part of normal operational costs. We have therefore concluded that this action will not have a significant economic impact on a substantial number of small entities.
D. Unfunded Mandates Reform Act (UMRA)
This action does not contain any unfunded mandate as described in UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect small governments. The action imposes no enforceable duty on any state, local, or tribal governments or the private sector. This action does not contain an unfunded mandate of $100 million or more as described in UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect small governments. While this action creates an enforceable duty on the private sector, the cost does not exceed $100 million or more.
E. Executive Order 13132: Federalism
This action does not have federalism implications. It will not have substantial direct effects on the states, on the relationship between the National Government and the states, or on the distribution of power and responsibilities among the various levels of government. The action affects private industry and does not impose economic costs on state or local governments.
F. Executive Order 13175: Consultation and Coordination With Indian Tribal Governments
This action has tribal implications. However, it will neither impose substantial direct compliance costs on federally recognized tribal governments, nor preempt tribal law. The EPA consulted with tribal officials under the EPA Policy on Consultation and Coordination with Indian tribes early in the process of developing this regulation to permit them to have meaningful and timely input into its development. A summary of that consultation is provided in the docket for this action (Docket ID No. EPA-HQ-OAR-2005-0155).
G. Executive Order 13045: Protection of Children From Environmental Health Risks and Safety Risks
This action is not subject to Executive Order 13045 because it is not economically significant as defined in Executive Order 12866, and because the EPA does not believe the environmental health or safety risks addressed by this action present a disproportionate risk to children.
H. Executive Order 13211: Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use
This action is not subject to Executive Order 13211, because it is not a significant regulatory action under Executive Order 12866.
I. National Technology Transfer and Advancement Act (NTTAA)
This rulemaking does not involve technical standards.
J. Executive Order 12898: Federal Actions To Address Environmental Justice in Minority Populations and Low-Income Populations
The EPA believes that this action does not have disproportionately high and adverse human health or environmental effects on minority populations, low-income populations and/or indigenous peoples, as specified in Executive Order 12898 (59 FR 7629, February 16, 1994).
The documentation for this decision is contained in section IV.B of this preamble and the technical report, Risk and Technology Review Analysis of Demographic Factors for Populations Living Perchloroethylene Dry Cleaning Facility Source Category Operations.
List of Subjects in 40 CFR Part 63
Environmental protection, Air pollution control, Hazardous substances, Reporting and recordkeeping requirements.
Michael S. Regan,
Administrator.
For the reasons stated in the preamble, EPA proposes to amend 40 CFR part 63 as set forth below:
PART 63—NATIONAL EMISSION STANDARDS FOR HAZARDOUS AIR POLLUTANTS FOR SOURCE CATEGORIES
1. The authority citation for part 63 continues to read as follows:
Authority:
42 U.S.C. 7401 et seq.
Subpart M—National Perchloroethylene Air Emission Standards for Dry Cleaning Facilities
2. Section 63.322 is amended by:
a. Revising paragraph (a) introductory text;
b. Adding paragraph (a)(4); and
c. Revising paragraph (o)(2).
The revisions and addition read as follows:
§63.322 Standards.
(a) Before [date 180 days after date of publication of the final rule in the Federal Register ], the owner or operator of each existing dry cleaning system and of each new transfer machine system and its ancillary equipment installed between December 9, 1991, and September 22, 1993, shall comply with either paragraph (a)(1) or (2) of this section and shall comply with paragraph (a)(3) of this section if applicable. On and after [date 180 days after date of publication of the final rule in the Federal Register ], the owner or operator of any existing dry cleaning system shall comply with paragraph (a)(4) of this section.
* * * * *
(4) The owner or operator of each existing dry cleaning system shall route the air-perchloroethylene (PCE) gas-vapor stream contained within each dry cleaning machine through a refrigerated condenser and pass the air-PCE gas-vapor stream from inside the dry cleaning machine drum through a non-vented carbon adsorber or equivalent control device immediately before the door of the dry cleaning machine is opened. The carbon adsorber must be desorbed in accordance with manufacturer's instructions.
* * * * *
(o) * * *
(2) The owner or operator of each dry cleaning system at an area source shall route the air-PCE gas-vapor stream contained within each dry cleaning machine through a refrigerated condenser and pass the air-PCE gas-vapor stream from inside the dry cleaning machine drum through a non-vented carbon adsorber or equivalent control device immediately before the door of the dry cleaning machine is opened. The carbon adsorber must be desorbed in accordance with manufacturer's instructions.
* * * * *
3. Section 63.324 is amended by revising paragraphs (d)(5) and (6) to read as follows:
§63.324 Reporting and recordkeeping requirements.
* * * * *
(d) * * *
(5) The date and monitoring results (temperature sensor or pressure gauge), as specified in §63.323, when a refrigerated condenser is used to comply with §63.322(a), (b), or (o); and
(6) The date and monitoring results, as specified in §63.323, when a carbon adsorber is used to comply with §63.322(a)(2) or (b)(3).
* * * * *
4. Section 63.325 is amended by revising paragraph (a)(7) to read as follows:
§63.325 Determination of equivalent emission control technology.
(a) * * *
(7) Information on the cross-media impacts (to water and solid waste) of the candidate emission control technology and demonstration that the cross-media impacts are less than or equal to the cross-media impacts of a refrigerated condenser and carbon adsorber.
* * * * *
[FR Doc. 2021-26469 Filed 12-23-21; 8:45 am]
BILLING CODE 6560-50-P
Does your facility need a hazardous waste manifest? If so, you’ll want to learn more about the recent rule from the Environmental Protection Agency (EPA). On June 28, 2024, the agency introduced a final rule to combine export and other manifest-related reports into the e-Manifest system, EPA’s national system that tracks hazardous waste shipments electronically. This rule changes parts of the regulations under the Resource Conservation and Recovery Act (RCRA) for the paperwork that goes with hazardous waste shipments.
EPA's latest updates focus on the following three areas:
Exporting hazardous waste
Previously, there was a separate process for tracking hazardous waste shipped out of the country for treatment, storage, and disposal. The new rule integrates this process into the e-Manifest system and designates the exporter as the entity responsible for submitting the manifest and paying the requisite user fee. This means that all hazardous waste shipments, whether they're going across town or across the ocean , will be tracked in the same way. The rule also expands the required international shipment data elements on the manifest form. Further, it updates the requirements for the document that tracks the movement of hazardous waste, aiming to better connect the information on the manifest with the information on the movement document. This will help track the manifest and integrate EPA’s Waste Import Export Tracking System with RCRAInfo.
Other important reports
EPA has also streamlined the process for submitting other reports related to hazardous waste. Discrepancy Reports for a mismatch in the amount of waste, Exception Reports for a problem with the shipment, and Unmanifested Waste Reports for waste found without a proper tracking document will now be handled electronically through the e-Manifest system. The rule also requires small and large quantity generators to register for access to e-Manifest to obtain their final signed manifest copies from the system.
Technical improvements
The agency has made some behind-the-scenes changes to improve the e-Manifest system's overall performance and user-friendliness. Some of the changes relate to aligning the polychlorinated biphenyl manifest regulations under the Toxic Substances Control Act (TSCA) with the RCRA manifest regulations. Other technical corrections remove outdated requirements, fix typographical errors, provide clear definitions, and ensure better alignment with the e-Manifest program.
The changes save time and money for organizations that handle hazardous waste. All hazardous waste shipments, regardless of destination, will be managed on a single platform, simplifying the process for generators and transporters. This integration will provide better visibility and tracking of hazardous waste throughout its journey, including international shipments.
Using a unified system improves data consistency, making it easier for regulators to monitor and analyze waste management practices and to prepare for future potential integration with biennial reporting requirements.
If you handle hazardous waste and need a hazardous waste manifest, familiarize yourself with the new rules and make any necessary adjustments to your processes. For example, organizations may need to update their software or systems to comply with the new e-Manifest requirements. Also, employees involved in hazardous waste management may require training on the new procedures and system functionalities.
This rule is effective on January 22, 2025.
However, the following requirements don’t go into effect until December 1, 2025:
Key to remember: EPA introduced a final rule to combine export and other manifest-related reports into the e-Manifest system and make technical corrections to improve efficiency.
The recently announced Spring 2024 regulatory agenda showcases an EPA proposed final rule that would reinstate certain requirements of the Agricultural Worker Protection Standard (WPS), particularly the reconsideration of the 2015 application exclusion zone (AEZ) amendments. If finalized, affected entities need to be aware of the proposed changes.
Pesticide handlers must suspend applications if any worker or person, other than appropriately trained and equipped handlers involved in the application enters an AEZ, regardless of whether they are on or off the establishment.
Pesticide handlers must suspend applications if any worker or person, other than appropriately trained and equipped handlers involved in the application enters an AEZ, regardless of whether they are in an area subject to an easement.
During pesticide application, the AEZ distance would be 100 feet for ground-based fine spray applications and a 25-foot AEZ for ground-based applications using medium or larger droplet sizes sprayed above 12 inches.
If you work in or employ persons working in crop production agriculture where pesticides are applied, you may be potentially affected by this action. While not an exhaustive list, the applicability of this action may include the following North American Industrial Classification System (NAICS) codes:
The original WPS regulation was enacted in 1992 under EPA’s Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) to protect farm workers from pesticide exposures in production agriculture.
In 2015, EPA finalized various significant revisions to the 1992 WPS. Among those revisions was a new provision requiring agricultural employers to keep workers and all other individuals out of the AEZ during outdoor pesticide applications.
Five years later, in October 2020, EPA finalized improvements to the enforceability and workability of the AEZ requirements, which were to decrease regulatory burdens for farmers while maintaining critical worker protections. Two months later, petitions were filed challenging the rule, and a preliminary injunction was filed, which stayed the effective date of the 2020 rule.
Fast-forward to March 2023, when the EPA published a notice of proposed rulemaking that would reconsider the 2020 requirements. If finalized, it would reinstate some 2015 WPS AEZ requirements and retain certain 2020 AEZ rule provisions.
Key to remember: The EPA proposed rule will, if amended, reinstate previous AEZ requirements that are protective of public health and limit exposure to those who may be near ongoing pesticide applications.
The Environmental Protection Agency (EPA) has several regulations in place to protect and improve the nation’s air quality. The nonattainment New Source Review (NSR) permit program ensures that the construction of new facilities and major modifications to existing facilities don’t cause more “bad air days."
You must obtain a preconstruction permit to build a new facility or make a major modification to one that will significantly increase emissions of criteria air pollutants (known as a major source). The type of permit required is based on whether the proposed construction will occur in an area that meets EPA’s national air quality standards.
If you plan to build or modify a facility in an area that doesn’t meet national standards for any criteria air pollutant, a nonattainment NSR permit is required.
Under the Clean Air Act (CAA), EPA regulates the emissions of six criteria air pollutants through the National Ambient Air Quality Standards (NAAQS). The agency determines whether each geographic area in the U.S. meets the national emission standard for each criteria pollutant. The agency designates areas that meet or outperform the NAAQS as attainment areas. Conversely, it designates areas that don’t meet the NAAQS as nonattainment areas.
The CAA requires states to develop and adopt general State Implementation Plans (SIPs) for achieving and maintaining the NAAQS. States must also develop specific plans for each nonattainment area to reduce emissions of criteria pollutants and maintain the NAAQS. One of the required components of an SIP is an outline of NSR permitting requirements.
Typically issued at the state level, NSR permits require major sources to install and maintain pollution control equipment. They also establish:
Don’t forget to check state regulations! States may have more stringent emissions limits, monitoring requirements, and application processes than federal standards.
The three types of NSR permitting requirements include:
Let’s zoom in on the nonattainment NSR permit.
To construct a new major source or modify an existing one in a nonattainment area, you must obtain a nonattainment NSR permit. Facilities with nonattainment NSR permits are subject to more restrictive requirements.
Lowest achievable emission rate
Facilities must install the most stringent level of emissions control technology, known as the lowest achievable emission rate (LAER). You must apply LAER to any criteria air pollutant that will meet or exceed its emission limit.
LAER is based on whichever rate is most stringent, either:
To meet the LAER, your facility may need to implement various measures, such as modifying existing processes and implementing add-on controls.
Emission offsets
For each criteria pollutant a facility proposes to emit, it must obtain offsets to compensate for the increased emissions and provide a net air quality benefit. Emission offsets are primarily acquired from existing sources within the same nonattainment area.
Public involvement
Facilities must provide public input opportunities throughout the permitting process. Examples include publishing a notice of a draft nonattainment NSR permit for public review and comment as well as holding requested public hearings on the proposed permit.
If you’re considering building or modifying a major source, the first thing to do is establish whether the construction will occur in an attainment or nonattainment area.
A nonattainment NSR permit allows you to build or modify your facility while ensuring it doesn’t contribute to bad air days.
Key to remember: A nonattainment NSR permit is required to build or modify a facility in an area that doesn’t meet National Ambient Air Quality Standards.
Factories may breathe easier (for now) with the outcome of the recent U.S. Supreme Court case of Ohio v. Environmental Protection Agency (EPA). The court granted emergency applications from several states seeking a stay of the Good Neighbor Plan (GNP ) pending judicial review. The plan addresses ozone-forming emissions of nitrogen oxides from power plants and industrial facilities. Here’s a breakdown of the case and what it means for facilities in these states.
EPA, tasked with protecting air quality, introduced the GNP in 2015. This plan aimed to reduce air emissions drifting from upwind states to downwind states, impacting air quality for millions.
Think of it like smoke blowing from your neighbor's bonfire into your backyard. The GNP would require the upwind neighbor (state) to take steps to reduce the smoke (smog emissions) affecting the downwind neighbor (state ).
The Good Neighbor rule gives states the choice to create a plan that follows EPA's guidelines for reducing ozone under the National Ambient Air Quality Standards (NAAQS). If a state doesn’t submit an adequate plan, EPA steps in and creates a compliance plan for that state. In February 2023, the agency found that some states didn’t submit sufficient plans. The Clean Air Act requires EPA to implement a federal implementation plan (the GNP) to control emissions in those states.
Several states, led by Ohio, challenged the plan in court. They argued that EPA overstepped its authority by setting overly strict emission-reduction requirements. They felt the agency hadn’t adequately explained how it arrived at these numbers and ignored alternative, less expensive ways to achieve similar results.
In June 2024, the U.S. Supreme Court sided with Ohio in a 5-4 decision (Case No. 23A349). The court didn’t rule on the merits of the plan itself but rather put a temporary block on its enforcement. This means the GNP is on hold while lower courts review the case further.
So, what does this mean for factories, power plants, and other facilities that release air emissions?
The outcome of this case has significant implications for air quality. Proponents of the GNP argue it’s crucial for protecting public health, especially in downwind states. Opponents argue it places an undue burden on businesses and hinders economic growth.
The lower courts will now weigh these arguments. The final decision could significantly affect how air emissions are regulated and how much stationary sources can emit.
Key to remember: The U.S. Supreme Court placed a temporary ban on EPA’s Good Neighbor Plan in Ohio and several other states as the legal battle continues in the lower courts.
The Environmental Protection Agency (EPA) published the Spring 2024 Semiannual Agenda of Regulatory and Deregulatory Actions on July 5, 2024. The agenda shows the agency’s upcoming regulatory actions and where they are in the rulemaking process.
The agenda includes major EPA updates, such as:
While you’ll want to review the entire agenda to learn about all the rulemakings on EPA’s docket, this article highlights some of the major rules we’re watching closely. Also, please note that the agenda dates are tentative, the times by which the agency hopes to publish the rulemakings in the Federal Register.
Final Rule Stage | |
Projected publication date | Title |
August 2024 | National Volatile Organic Compound Emission Standards for Aerosol Coatings Amendments |
September 2024 | Review of Final Rule Reclassification of Major Sources as Area Sources Under Section 112 of the Clean Air Act |
October 2024 | Hazardous and Solid Waste Management System: Disposal of Coal Combustion Residuals From Electric Utilities; Federal CCR Permit Program |
November 2024 | Clean Water Act Section 404 Tribal and State Program Regulation |
November 2024 | Federal Plan Requirements for Commercial and Industrial Solid Waste Incineration Units |
December 2024 | Oil and Gas NESHAP; Part 63 Subparts HH and HHH; Removal of Affirmative Defense |
Proposed Rule Stage | |
Projected publication date of Notice of Proposed Rulemaking | Title |
September 2024 | Phasedown of Hydrofluorocarbons: Review and Renewal of Eligibility for Application-Specific Allowances |
September 2024 | Clean Water Act Effluent Limitations Guidelines and Standards for PFAS Manufacturers Under the Organic Chemicals, Plastics and Synthetic Fibers Point Source Category |
December 2024 | Emission Guidelines for GHG Emissions from Existing Fossil Fuel-Fired Combustion Turbine EGUs |
June 2025 | Improving Recycling and Management of Renewable Energy Wates: Universal Waste Regulations for Solar Panels and Lithium Batteries |
June 2025 | PFAS Requirements in NPDES Permit Applications |
Pre-Rule Stage | |
Projected publication date or other action | Title |
November 2024 (End Review) | 610 Review of Standards of Performance for New Residential Wood Heathers, New Residential Hydronic Heaters and Forced-Air Furnaces |
December 2024 (Advanced Notice of Proposed Rulemaking) | N-(1,3-Dimethylbutyl)-N'-phenyl-p-phenylenediamine ("6PPD") and its Transformation Product, 6PPD-Quinone ("6PPD-q"); Rulemaking Under the Toxic Substances Control Act (TSCA) |
Long-Term Rule Stage | |
Projected publication date or other action | Title |
July 2025 (Notice of Proposed Rulemaking) | Updates to the RCRA Hazardous Waste Regulations and Related Technical Corrections - Permitting Updates Rule |
I had a recent conversation with colleagues in the industry about the importance of investigating environmental incidents. We had a great exchange of tips and best practices that I couldn’t wait to share.
Let's talk about preparedness first. Before an incident occurs, make sure you're ready to respond. This means having a solid response plan and training your employees on what to do in different situations. On top of that, gather the supplies you might need. Ensure you have the supplies you may need in response to all the potential environmental incidents that could occur, including items like spill kits, overpack containers, and portable containments for releases and spills. You should also include all the tools you need for investigation and documentation.
Now, when it comes to the actual investigation, following a set process is key. An established method ensures the process is consistent from incident to incident. Need a handy tip? Create standardized forms and a list of common questions that always require answers.
Many of our customers have the responsibility of conducting both safety and environmental incident investigations. In the world of safety, incident notification and investigation often happen after an event occurs. For example, it can be after someone is injured or has a near miss. Environmental incidents can be similar, but there's a twist: the incidents, such as spills or leaks, are often still occurring when reported. This can have implications on what your early actions look like and how quickly you need to take action.
Finally, the records you keep of what happened are crucial. It’s recommended that the investigation and recordkeeping efforts match the severity of the incident. If you have a serious incident, such as a major release, you'll probably have a bigger team investigating, including people from different departments. There should be a high level of detail with respect to documentation, pictures, and data collected. For minor incidents, perhaps something that’s fully contained or doesn’t trigger regulatory reporting, the investigation can be a smaller effort with less comprehensive records.
When it comes to environmental incidents, hoping for the best just won’t do — you must also prepare for the worst.
Have a question for our Compliance Experts?
If you have safety or compliance questions, we encourage you to use Compliance Network’s Expert Help tool. Mishka Binns and our team of Compliance Experts will respond to your question within 24 business hours.
Heat waves disrupting factory production? Rising sea levels threatening coastal businesses? The Environmental Protection Agency (EPA) is taking concrete steps to combat climate change with the release of its 2024-2027 Climate Adaptation Plan. The plan outlines a series of actions the agency will take over the next four years to make sure it's prepared for the challenges of a changing climate.
The plan focuses on several key areas.
Building a climate-smart workforce
EPA is investing in ongoing education and training for its staff to equip them with knowledge about the future impacts of climate change, how EPA programs might be affected, and different strategies for adapting. One example is the agency-wide "Climate Conversations" webinar series, which fosters collaboration and knowledge sharing among staff.
Strengthening facility resilience
EPA is continuing to conduct facility resiliency assessments to identify areas vulnerable to climate change impacts. Based on these assessments, the agency will make recommendations for improvements to make facilities more resilient.
Building stronger supply chains
EPA is now considering climate hazards as part of its overall supply chain risk management plan. It will conduct assessments this year to identify potential disruptions and develop strategies to mitigate them.
Funding climate-ready communities
EPA is modernizing its financial assistance programs to encourage investments in communities and Tribal lands that are more resilient to climate change. The agency also launched the internal Climate-Resilient Investments Clearinghouse website to help staff integrate climate considerations into funding decisions.
Empowering informed decisions
EPA is providing communities and recipients of their financial resources with the tools, data, and technical support they need to assess their own climate risks. This empowers them to develop targeted solutions that work best for their specific situations.
Climate-proofing regulations
EPA is integrating climate change considerations into the rulemaking processes where appropriate to ensure its regulations remain effective even with a changing climate.
Industrial facilities aren’t immune to the effects of climate change. Extreme weather events can damage infrastructure, disrupt operations, and lead to costly shutdowns. By taking steps to adapt to climate change, industrial facilities can protect their businesses, their employees, and the communities where they operate.
Facilities should be on the lookout for potential new requirements as EPA plans to integrate climate adaptation into future rulemakings. New rules could require businesses to consider future weather extremes, like stronger storms or floods. This could lead to fortifying buildings or raising critical equipment, which upfront might be costly but could prevent far more expensive damage down the line.
An example of the agency’s new commitment to include climate adaptation requirements is reflected in the final amendments of the Risk Management Plan rule. Facilities that manage hazardous materials must now develop response plans to prepare for the largest foreseeable discharges in adverse weather conditions, including more extreme weather conditions expected as the climate changes.
Key to remember: EPA released the 2024-2027 Climate Adaptation Plan, which describes agency actions to address the impacts of climate change. It incorporates climate adaptation into the agency’s programs, policies, rules, enforcement activities, and operations.
“To be, or not to be.” That is not the question for facilities subject to the universal waste program. “Subpart B or Subpart C of 40 CFR Part 273?” That is the question.
The Environmental Protection Agency’s (EPA’s) universal waste program simplifies management requirements for five types of federally designated hazardous wastes: batteries, pesticides, mercury-containing equipment, lamps, and non-empty aerosol cans. The program covers two categories of universal waste generators: small quantity handlers of universal waste (SQHUWs) and large quantity handlers of universal waste (LQHUWs).
Requirements differ based on the amount of universal waste a facility accumulates. Subpart B regulates SQHUWs, while Subpart C regulates LQHUWs. Determine which category applies to your facility to ensure you comply with the right universal waste requirements.
A universal waste handler either (a) generates a federally designated universal waste or (b) receives universal waste from other handlers, accumulates universal waste, and sends universal waste to:
It excludes transfer facilities that transport off-site universal waste by air, rail, highway, or water as well as destination facilities that treat, dispose of, or recycle universal waste. If your facility is considered a universal waste handler, you must then identify which handler category applies.
The universal waste program requirements for handlers differ based on the amount of universal waste accumulated:
If your facility qualifies as an LQHUW during the calendar year, it keeps this status through the end of the calendar year. You can reevaluate the status in the next calendar year.
Now that you know which category applies to your facility, let’s take a look at the requirements for each kind of universal waste handler.
Many of the same rules apply to all universal waste handlers. Both SQHUWs and LQHUWs must:
However, large handlers have requirements that extend beyond those of small handlers. The table below summarizes the differences.
SQHUWs | LQHUWs | |
Waste management | See 40 CFR 273.13 | See 40 CFR 273.33 |
Training | Issue basic waste-handling and emergency information to employees, ensuring workers know the proper procedures. | Ensure all employees are very familiar with waste-handling and emergency procedures related to their tasks during normal operations and emergencies. |
Recordkeeping | Not required, but recommended | Required (Keep records of all shipments received by and sent from the facility. Maintain the records for at least three years.) |
EPA Identification (ID) Number | Not required | Required |
EPA notification | Not required | Required (Before meeting the 5,000-kilogram threshold to become an LQHUW, send written notification of the facility’s universal waste management activities to the regional administrator, and receive an EPA ID Number.) |
Universal waste handlers may:
Universal waste handlers may not:
The most important tip for all universal waste handlers is to check the state regulations.
States don’t have to cover all federally designated universal wastes, and they can impose stricter management standards (except on batteries). Wisconsin’s universal waste management program, for example, doesn’t cover aerosol cans.
On the other hand, states can add materials covered by their universal waste management programs. Texas designates paint and paint-related waste as universal waste, and California includes solar panels in its universal waste program.
Key to remember: EPA’s universal waste program requirements differ for small and large quantity handlers. Facilities determine which rules apply based on the amount of universal waste they accumulate.
Have you ever wondered how many chemicals are used in everyday products in the United States? Section 8(b) of the Toxic Substances Control Act (TSCA) requires the Environmental Protection Agency (EPA) to compile, keep current, and publish a list of each chemical substance. The agency keeps track of them on a list called the TSCA Chemical Substance Inventory, commonly referred to in the industry as “the Inventory.”
EPA recently updated the Inventory in May 2024. This regular update happens twice a year for the nonconfidential portion of the Inventory. Let's dive into what the update means and why it's important.
Imagine the Inventory as a giant catalog of chemicals. It includes all the existing chemicals manufactured, processed, or imported into the U.S. that don’t qualify for an exemption or exclusion under TSCA. This means chemicals used in things like cleaning products, clothing, toys, and medications are on this list. You can search the Inventory on EPA's website to learn more about a specific chemical.
Under TSCA regulations, if a chemical is on the Inventory, the substance is considered an "existing" chemical substance in U.S. commerce. Any chemical not on the Inventory is considered a “new” chemical substance.
In addition to defining whether a specific substance is new or existing, the Inventory also flags existing chemical substances that are subject to manufacturing or use restrictions.
Determining whether a chemical is on the Inventory is a critical step before beginning to manufacture (which includes importing) a chemical substance.
Through the update to the Inventory, EPA:
The TSCA Inventory is a valuable tool for several reasons:
EPA is constantly working to improve the Inventory. The agency is reviewing information about chemicals on the confidential portion of the list to determine whether they can be moved to the public list. This increases transparency and allows for more public oversight of chemicals used.
The next update to the Inventory is expected in early 2025. By keeping this list updated, EPA can better ensure the safety of chemicals and protect public health.
The update to the TSCA Inventory coincides with the start of the Chemical Data Reporting (CDR) cycle. The CDR program requires companies that manufacture or import certain chemicals to report information about the chemicals to EPA. The Inventory helps these companies determine which chemicals they need to report.
Key to remember: EPA published the biannual update to the TSCA Inventory, which tracks all chemicals used in the U.S., ensures safety, and informs regulations.
The Environmental Protection Agency (EPA or the “Agency”) is proposing to address the unreasonable risk of injury to human health presented by n-methylpyrrolidone (NMP) under its conditions of use as documented in EPA's risk evaluation and risk determination for NMP pursuant to the Toxic Substances Control Act (TSCA). NMP is a widely used solvent in a variety of industrial, commercial, and consumer applications including the manufacture and production of electronics such as semiconductors, polymers, petrochemical products, paints and coatings, and paint and coating removers. EPA determined that NMP presents an unreasonable risk of injury to health due to the significant adverse health effects associated with exposure to NMP, including developmental post-implantation fetal loss from short-term exposure and reduced fertility and fecundity from long-term exposure. Additional adverse effects associated with exposure to NMP include liver toxicity, kidney toxicity, immunotoxicity, neurotoxicity, skin irritation, and sensitization. To address the identified unreasonable risk, EPA is proposing to: prohibit the manufacture (including import), processing, and distribution in commerce and use of NMP in several occupational conditions of use; require worker protections through an NMP workplace chemical protection program (WCPP) or prescriptive controls (including concentration limits) for most of the occupational conditions of use; require concentration limits on a consumer product; regulate certain consumer products to prevent commercial use; and establish recordkeeping, labeling, and downstream notification requirements.
DATES: Comments must be received on or before July 29, 2024, published in the Federal Register Jun 14, 2024, page 51134.
View proposed rule.
Pursuant to the U.S. Environmental Protection Agency’s Significant New Alternatives Policy program, this action lists several substitutes as acceptable, subject to use conditions, for retail food refrigeration, commercial ice machines, industrial process refrigeration, cold storage warehouses, and ice skating rinks. Through this action, EPA is incorporating by reference standards which establish requirements for commercial refrigerating appliances and commercial ice machines, safe use of flammable refrigerants, and safe design, construction, installation, and operation of refrigeration systems. This action also exempts propane, in the refrigerated food processing and dispensing end-use, from the prohibition under the Clean Air Act (CAA) on knowingly venting, releasing, or disposing of substitute refrigerants in the course of maintaining, servicing, repairing or disposing of an appliance or industrial process refrigeration, as the Administrator is determining, on the basis of existing evidence, that such venting, release, or disposal of this substance in this end-use does not pose a threat to the environment.
DATES: This rule is effective July 15, 2024, published in the Federal Register June 13, 2024, page 50410.
View final rule.
EPA is proposing significant new use rules (SNURs) under the Toxic Substances Control Act (TSCA) for chemical substances that were the subject of premanufacture notices (PMNs) and are also subject to a TSCA Order. A SNUR requires persons who intend to manufacture (defined by statute to include import) or process a particular chemical substance for an activity that is identified as a significant new use in the SNUR to notify EPA at least 90 days before commencing that activity. The required notification initiates EPA's evaluation of the conditions of use identified in the notification to EPA. In addition, the manufacture or processing for the significant new use may not commence until EPA has conducted a review of the required notification, made an appropriate determination regarding that notification, and taken such actions as required by that determination.
DATES: Comments must be received on or before July 11, 2024, published in the Federal Register June 11, 2024, page 49700.
View proposed rule.
EPA is proposing significant new use rules (SNURs) under the Toxic Substances Control Act (TSCA) for chemical substances that were the subject of premanufacture notices (PMNs) and are also subject to a TSCA Order. The SNURs require persons who intend to manufacture (defined by statute to include import) or process any of these chemical substances for an activity that is proposed as a significant new use by this rule to notify EPA at least 90 days before commencing that activity. The required notification initiates EPA's evaluation of the conditions of use for that chemical substance. In addition, the manufacture or processing for the significant new use may not commence until EPA has conducted a review of the required notification, made an appropriate determination regarding that notification, and taken such actions as required by that determination.
DATES: Comments must be received on or before July 11, 2024, published in the Federal Register June 11, 2024, page 49121.
View proposed rule.
Methylene chloride, a volatile liquid chemical, poses severe health risks to individuals exposed to the substance. Despite the hazards, its use continues across consumer, commercial, and industrial applications. For example, it's used in automotive products, adhesives, and solvents to form other chemicals.
To address the health hazards posed, the Environmental Protection Agency (EPA) finalized a risk management rule under the Toxic Substances Control Act (TSCA) that prohibits nearly all uses of methylene chloride.
Use this guide to help you determine whether the methylene chloride ban impacts your operations.
EPA made a final determination in November 2022 that methylene chloride as a whole chemical substance presents an unreasonable risk of injury to health under its conditions of use. The chemical is known to cause neurotoxicity from short-term exposure and cancer and liver harm due to long-term exposure. There are even documented cases of sudden death caused by short-term contact with the chemical substance.
When EPA determines a chemical poses an unreasonable risk, TSCA requires the agency to develop regulations to reduce or eliminate the risk. That’s where this final rule comes in (40 CFR Part 751 Subpart B), banning all consumer uses and most commercial and industrial uses of methylene chloride.
Manufacturers (including importers), processors, and distributors must phase out methylene chloride (including methylene chloride-containing products) for all consumer uses within one year and most commercial and industrial uses within two years.
Here’s an overview of the phaseout schedule:
Methylene chloride phaseouts | ||
---|---|---|
Prohibited: | For: | After: |
Distribution to retailers | Any use | February 3, 2025 |
Distribution by retailers | Any use | May 5, 2025 |
Manufacturing (including importing) | Any use (apart from certain exempt commercial and industrial uses) | May 5, 2025 |
Processing | Any use (apart from certain exempt commercial and industrial uses) | August 1, 2025 |
Distribution in commerce | Any use (apart from certain exempt commercial and industrial uses) | January 28, 2026 |
Use for commercial or industrial purposes | Any use (apart from certain exempt commercial and industrial uses) | April 28, 2026 |
The regulations also require manufacturers, processors, and distributors that ship methylene chloride to notify the receiving companies of the prohibitions through Safety Data Sheets (SDSs) and to maintain records that document:
Remaining uses
The final rule allows very few time-limited exemptions for commercial and industrial uses of methylene chloride to:
Facilities involved in the remaining uses of methylene chloride must comply with EPA’s new Workplace Chemical Protection Program. It requires facilities to:
Facilities must keep these records for at least five years from the date they’re generated.
The final rule sets a de minimis exemption threshold of 0.1 percent by weight to account for impurities and the unintended presence of methylene chloride. In other words, products that contain less than 0.1 percent of methylene chloride aren’t subject to the final rule.
However, note that this provision doesn’t apply to 751.105, which bans the sale and distribution of methylene chloride-containing consumer paint and coating removal products.
If your facility is involved in manufacturing, processing, or distributing methylene chloride (including methylene chloride-containing products), consider these tips to help you comply with the new regulations:
Key to remember: EPA will phase in its ban on methylene chloride for all consumer uses and most commercial and industrial uses over the next two years.
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OSHA requires employers to provide all workers with immediately available and sanitary restroom or toilet facilities. But does this include truckers and delivery drivers that stop at your facilities? The sanitation standards (1910.141, 1926.51, and 1928.110) are meant to protect all workers from adverse health effects from unsanitary toilets facilities, or the unavailability of facilities when needed.
Bipartisan legislation has recently been introduced in the House that would require businesses to provide restroom access to truckers who are loading or delivering cargo at their warehouses, manufacturers, distribution centers, retailers, and ports.
Supported by leading organizations in the trucking industry, the Trucker Bathroom Access Act (H.R. 9592) was introduced on Dec. 15, 2022. The bill requires retailers, warehouses, and other establishments with existing restrooms to provide access to drivers who are loading or delivering cargo. Additionally, operators of ports and marine terminals must provide access for drayage and parking while accessing such restrooms.
This amendment to Title 49 would exempt some employers from the bill including filling and service stations, and restaurants 800-square feet or smaller with restrooms intended for employee use only. The bill doesn’t require employers to construct new restrooms but to give truck drivers the same access as employees or customers.
Commercial truckers and delivery drivers are the lifeline of our supply chain of supplies, products, and consumables. Working tirelessly all hours, during holidays and weekends, and throughout the pandemic, they continue to deliver critical food and emergency supplies to companies everywhere. Employers have the privilege of demonstrating gratitude to truckers and delivery drivers with a positive work environment.
The benefits of allowing truckers and delivery drivers the convenience and safety of readily available, sanitary restroom facilities are plenty. They’re able to rest and reset when necessary, which keeps them and others safer on the roads. Equally important, restroom availability prevents drivers from having to search for available facilities elsewhere, allowing them to keep a timely delivery schedule, limit supply chain delays, and ultimately lower costs for employers and customers.
The proposed Trucker Bathroom Access Act will require retailers, warehouses, and other establishments with existing restrooms to provide access to truckers and delivery drivers who are loading or delivering cargo. Access to restrooms keeps them refreshed and ready to deliver essential supplies to companies across the country.
Quick action using cardiopulmonary resuscitation (CPR) and automated external defibrillators(AEDs) can save the lives of the nearly 350,000 cardiac event victims each year outside of a hospital setting. But what does OSHA require for the workplace? What you didn’t know about OSHA regulations regarding AEDs may surprise you.
For every minute a patient is in cardiac arrest, their chances of survival decrease dramatically. When a patient doesn’t have a pulse and isn’t breathing, CPR should be performed until an AED is available. It’s important to note that CPR alone does not restart the heart. CPR is an oxygen circulation procedure. AEDs, on the other hand, are meant for lifesaving intervention.
CPR and early defibrillation are vital components of the emergency medical services (EMS) chain of survival that increases the odds of cardiac patient survival. However, according to the American Heart Association (AHA), even the best CPR can’t provide enough circulation of oxygen to the brain and heart for more than a few minutes. In fact, a patient whose brain is deprived of oxygen for 10 minutes or more seldom recovers.
Just like a reliable vehicle, the circulatory system is the human body’s blood transportation system, and the heart is the engine. Amazingly, the heart generates its own electrical impulses, pumping in a regular, rhythmic manner. As with any engine, the heart requires a certain amount of pressure to function and doesn’t work well when clogged with grease or debris. The most common causes of sudden cardiac arrest include a heart attack, electrocution, and asphyxiation — all of which could occur in the workplace. Common signs and symptoms include:
CPR provides the pressure for the body’s “engine” to oxygen circulating, while an AED provides the electrical impulses to keep the engine pumping.
OSHA 1910.151 requires first aid treatment be provided in the absence of an infirmary, clinic, or hospital in near proximity to the workplace used to treat injured employees. This may include assisting a victim of cardiac arrest using CPR or defibrillation.
OSHA requirements for CPR and defibrillation differ considerably. Standards requiring CPR include:
OSHA recommends basic adult CPR refresher training and retesting every year, and first aid training at least once every three years. CPR training include facilitated discussion along with ’hands-on’ skills training that uses mannequins and partner practice.
Though OSHA recognizes AEDs as important lifesaving technology that plays a role in treating cardiac arrest, the agency doesn’t currently require their use in the workplace. Instead, OSHA wants employers to assess their own requirements for AEDs as part of their first aid response.
AEDs are considered Class III medical devices which means the Food and Drug Administration (FDA) has some oversight on their use. Almost all AEDs require the purchaser to obtain a prescription from a physician under FDA regulations. The prescription process is meant as a quality control mechanism to ensure AEDs are properly maintained, that all designated responders are properly trained, and assist employers with establishing an emergency response plan for their workplace AED program.
The AHA requires AED operators to also receive CPR training as an “integral part of providing lifesaving aid to people suffering sudden cardiac arrest.” Though easy to use, each AED is slightly different, so training helps users understand the unique traits and supplies for the individual units at their workplace. Additionally, AED users must be trained to understand the signs of a sudden cardiac arrest, when to activate the EMS system, and how to perform CPR.
AEDs are light, portable, easy to use, and inexpensive. They’re best placed near high-hazard areas such as confined spaces, near electrical energy, or in remote work areas. Response time to reach AEDs should be kept within 3–5-minutes.
Need more information on defibrillators in the workplace? See our ezExplanation on AEDs. |
Many states require or encourage CPR and AED training from nationally recognized organizations. Any AED training should include CPR training. OSHA doesn’t offer first aid or CPR training, nor certify trainers. Training by a nationally recognized organization, such as AHA, the American Red Cross, or National Safety Council is recommended.
While OSHA doesn’t currently require the use of AEDs in the workplace, they do expect employers to assess their own AED requirements as part of their first aid response. AED training is required by most states and should include CPR with a hands-on practical component.
Yes, this includes traditional spills and releases. But have you considered looking beyond that? It can be beneficial to evaluate all types of environmental situations in your compliance programs that warrant tracking, corrective action, and, sometimes, reporting.
First, identify how your organization defines environmental incidents. You may decide it includes a wide range of environmental events or is very narrow in focus. For example, determine if it makes sense to include only releases that trigger regulatory reporting or if there’s a lower reporting threshold that’s more appropriate. If you track and investigate small spills, determine down to what level they’re addressed.
If your organization has multiple locations, does it make sense to create one set of rules for environmental incidents? Or does it create a stronger program to set different criteria and thresholds for each site or group of locations? I recently worked with a customer that operates three beverage manufacturing facilities and a dozen distribution centers. Because the risks and materials at each were different enough, it made sense for the customer to create distinct internal reporting criteria for each type of facility.
Also, consider the potential value of tracking and recording spills or leaks that occur inside buildings. These typically aren’t reportable, so many of you may be wondering why you should bother. There are many benefits to recording inside spills and leaks. I’ve worked with some environmental incident programs that effectively used this tracking as a leading indicator. Plus, you can see trends in equipment maintenance, operation, and housekeeping that, if adjusted, can help prevent similar incidents from occurring outside that would be reportable and could have a negative environmental impact. Identifying and investigating indoor spills can be an important component of employee safety as well.
Administrative program pieces are less commonly associated with an “incident,” but they should be considered. These incidents can fall under the radar, but most environmental enforcement actions are related to administrative incidents. Missed recordkeeping, missed reporting deadlines, and incomplete reports are all areas that trigger violations.
Clearly defining when something is and isn’t officially considered an incident helps you maintain a strong and compliant environmental program.
Hi everyone! Welcome to the monthly news roundup video, where we’ll review the most impactful environmental, health, and safety news. Please view the content links in the transcript for more information about the topics I’ll be covering today. Let’s get started!
Two State Plan agencies allegedly provided advance notice of workplace inspections to employers, a practice that’s prohibited under the Occupational Safety and Health Act. Now, lawmakers have requested that the Department of Labor’s acting secretary address the allegations and explain what challenges OSHA faces when monitoring and enforcing State Plan compliance.
A recent study shows jobs in agriculture, forestry, fishing, and hunting are among California’s most dangerous, accounting for the highest number of fatalities among full-time workers. Transportation and utilities jobs ranked second and construction was third.
Remote isolation of process equipment can quickly stop the release of hazardous materials, which can help prevent fatalities and injuries, limit facility damage, and better protect communities and the environment. A U.S. Chemical Safety Board study explores their use and makes recommendations for their utilization in chemical facilities.
A National Safety Council report explores the role of diversity, equity, and inclusion on work-related musculoskeletal disorders, or MSDs. MSDs are the most common workplace injury and often lead to worker disability, early retirement, and employment limitations.
And finally, turning to environmental news, EPA published a final rule that revises its hazardous waste export manifest regulations. All hazardous waste shipments and manifest-related reports will be managed electronically through the agency’s e-Manifest program.
Thanks for tuning in to the monthly news roundup. We’ll see you next month!
“Actions speak louder than words.” You can apply this expression to hazardous waste with a minor revision: “Actions speak louder than lists.” Even if a solid waste isn’t on any of the Environmental Protection Agency’s (EPA’s) hazardous waste lists, it may still be considered hazardous based on how it acts.
The Resource Conservation and Recovery Act (RCRA) requires all businesses to determine whether the waste generated is hazardous. If it’s a hazardous waste, it’s subject to the RCRA Subtitle C hazardous waste management regulations.
A waste is hazardous if:
Whether or not it’s a listed waste, you must determine if each waste you produce is a characteristic waste.
Let’s take a closer look at each of the four hazardous waste characteristics.
1. Ignitability
Ignitable wastes are easily combustible or flammable. They include:
Common ignitable wastes are paints and degreasers.
2. Corrosivity
Corrosive wastes dissolve metals and other materials. Such wastes include:
Examples are rust removers, certain cleaning fluids, and battery acid.
3. Reactivity
Reactive wastes are unstable wastes that can react rapidly and/or violently when mixed with other materials. These include:
Bleach, peroxide, and lithium-sulfur batteries are considered reactive.
4. Toxicity
Toxic wastes have contaminants that are harmful or fatal through ingestion or skin contact. Improper disposal of toxic wastes can pollute groundwater.
Wastes with any of the contaminants in concentrations at or above the regulatory level specified in the regulations (261.24) are designated as toxic.
Cadmium, lead, and mercury are examples.
The RCRA hazardous waste identification process requires you to determine whether a waste is listed and if it has any hazardous characteristics. That means that regardless of whether the waste is listed, you must determine if the waste has one or more hazardous characteristics.
You may determine if a waste has any hazardous characteristics by:
Use the RCRA Characteristic Hazardous Wastes table as a helpful reference when determining whether a waste has hazardous characteristics.
RCRA Characteristic Hazardous Wastes | ||||
---|---|---|---|---|
Ignitable waste | Corrosive waste | Reactive waste | Toxic waste | |
Description | Easily catches fire and sustains combustion | Readily dissolves metal and other materials | Quickly reacts violently or explodes | Excessively leaches dangerous contaminants |
EPA Hazardous Waste Number(s) | D001 | D002 | D003 | D004–D043* |
Approved SW-846 Test Methods |
|
|
|
|
Regulation (40 CFR Part 261) | 261.21 | 261.22 | 261.23 | 261.24 |
* “Table 1 — Maximum Concentration of Contaminants for the Toxicity Characteristic” at 261.24 lists the EPA Hazardous Waste Number for each contaminant. |
Consider these RCRA reminders when designating waste:
All nonexempt characteristic hazardous waste that your facility generates is subject to RCRA’s Subtitle C hazardous waste management requirements.
Key to remember: Wastes that exhibit any of the four hazardous characteristics (ignitability, corrosivity, reactivity, and toxicity) are subject to RCRA Subtitle C regulations.
Here at J.J. Keller we often say it is not IF a spill will occur but WHEN. You might be compliant with all the relevant regulations and a spill may still occur. You need to be ready to respond safely and efficiently no matter your industry. Building a spill kit will ensure that you are prepared to contain the spill. This will limit the safety and environmental hazards you may encounter related to spill incidents.
Regulatory requirements
There are both OSHA and EPA requirements related to preventing and responding to spills, but it is important to note that the regulations do not require specific materials or quantities for a spill kit. OSHA provides guidance for worksites to have industry-standard programs in place for managing and disposing of hazardous waste including spills. And spills kits are a best practice under EPA’s Spill Prevention Countermeasures and Control rule. OSHA’s guidance requires training for employees who handle and control hazardous waste. They must also have the appropriate personal protective equipment and be trained to properly operate any equipment used in spill response and containment.
Types of spill kits
Spill kit materials are designed for certain materials. Some of the main types of spill kits include:
What to include in the spill kit?
When considering the contents of your spill kit you should think about the following:
Although spill kits are designed for certain spills, they should all contain a few fundamental pieces. These are your Personal Protective Equipment (PPE), sorbents, and clean-up items. PPE commonly used in spill response includes gloves, shoe covers, face, and eye protection. Chemical spill kits should also include a lab coat, respiratory protection, and a corrosive resistant apron. Absorbents are materials that absorb and contain a spill. This includes cloths, mops, sorbent socks, loose powders, etc. Clean-up equipment includes a dustpan or rubber shovel and containment bags for used PPE. Often the materials come in a container that is large enough to contain the potential spill.
A rule of thumb in the industry is that an appropriately sized spill kit is generally good for spills of approximately 100 gallons. For larger spills, you will likely need to consider alternative response methods such as a vacuum truck.
Sizing the spill kit
Now that you have selected the type of kit you need and the key elements, you need to assess the size of the spill kit you need. The size of your spill kit will be governed by the size of the spill you are likely to encounter, as well as other site conditions. For example, do you have multiple areas that might potentially have small spills? In this case, you might consider multiple bucket-sized spill kits in various locations close to the potential sources. Or do you have one area with the potential for a large spill? In that case, a large stationary spill kit might be more appropriate.
Benefits of using a spill kit
From a safety perspective, spill kits can help to reduce employee exposure to hazardous releases as well as reduce the potential for slips and falls. From an environmental standpoint spill containment prevents discharges to waterways and pervious surfaces. In general, it reduces risk and is easily incorporated as a part of a response plan.
Key to remember: You might be compliant with all the relevant regulations and a spill may still occur. You need to be ready to respond safely and efficiently no matter your industry. Building a spill kit will ensure that you are prepared to contain the spill.
The 150 air-mile exemptions, which are in the regulations at 395.1(e)(1) and (2), allow a driver to use a time record in place of a log, provided that certain conditions are met. While this is possibly the most widely used hours-of-service exemption, it may be the most commonly misused exemption, as well.
To be able to use this logging exemption in 395.1(e)(1), the driver must:
The company must retain the time record and have it available for inspection for six months.
Need more info? View our ezExplanation on the 150 air-mile exception. |
If the driver cannot meet the terms of the exemption (he or she goes too far or works too many hours), the driver must complete a regular driver’s log for the day as soon as the exemption no longer applies.
If the driver has had to complete a log 8 or fewer days out of the last 30 days, the driver can use a paper log for the day. If the driver had to complete a log more than 8 days out of the last 30 days, the driver needs to use an electronic log for the day (unless one of the ELD exemptions applies, such as operating a vehicle older than model year 2000).
When a property-carrying driver is operating under the 150 air-mile exemption, the driver is also exempt from having to take the required 30-minute break (see 395.3(a)(3)(ii)).
If the driver began the day as a 150 air-mile driver and has driven more than 8 consecutive hours without a break, and something unexpected happens and the driver can no longer use the 150 air-mile exemption, the driver must stop and immediately take the 30-minute break as well as start logging. If the driver went outside of the 150 air-mile area before the driver had 8 hours of driving without a break from driving, the driver would be expected to take the break at the appropriate time.
Here are some of the common myths and misunderstandings about the 150 air-mile exemption:
The 150 air-mile exemption at 395.1(e)(2) only applies to drivers that: Operate property-carrying vehicles that do not require a CDL to operate, and Stay within the 150 air-miles of their work reporting location.
If the driver stays within the 150 air-mile radius of the work reporting location, and returns to the work reporting location within 14 hours on 5 of the last 7 days, and 16 hours on 2 of the last seven days, the driver is allowed to use a time record in place of a log.
If the driver does not meet the terms of the exception, the driver will need to complete a log for the day. If the driver had to log more than 8 days out of the last 30 days, the driver will need to use an electronic log for the day. All of the other issues discussed above would apply to these drivers as well.
If you have drivers that use these exemptions, you will need to check time records to make sure they are complying with the appropriate time limits. You will also need to check movement records to verify that the drivers using these exemptions are staying within the mandated area (within 150 air-miles of the work reporting location for the day).
If a driver is over the hours limit, or has gone too far, you need to verify that the submitted a log for the day, either paper or electronic, depending on how many days the driver had to log out of the previous 30 days.
During an audit, if it is discovered that your drivers are using these exemptions incorrectly, you will be cited for not having drivers’ logs when required. Each day this occurred will be another violation, so the fine could be rather large if you are not managing the use of these exemptions!
OSHA issued a Notice of Proposed Rulemaking (NPRM) for the Heat Injury and Illness Prevention in Outdoor and Indoor Work Settings standard on August 30, 2024! Employers have 120 days to comment on the proposal. As anticipated, this first-ever national heat rule intends to help employers protect workers from indoor and outdoor heat-related fatalities and illnesses.
Interested in how the standard got this far? See our article, "Proposed heat illness prevention rule leaves OMB." |
OSHA’s proposed heat rule would apply to all employers conducting outdoor and indoor work in all general industry, construction, maritime, and agricultural sectors under the agency’s jurisdiction with a few exceptions. In addition to temperatures, heat generation from industrial processes and radiant heat such as ovens and furnaces have also been considered throughout the rulemaking process.
Employers would be responsible for determining which work activities are covered by the standard. They may have some work activities that are exempt from the standard and others that are covered.
Key elements include:
OSHA has defined several key terms to help clarify proposed expectations.
TERM | DEFINITION |
Initial Heat Trigger | A heat index of 80°F or a wet bulb globe test (WBGT) equal to the NIOSH Recommended Alert Limit (RAL). |
High Heat Trigger | A heat index of 90°F or WBGT equal to the NIOSH Recommended Exposure Limit (REL). |
Heat Index | Refers to the National Weather Service heat index, which combines ambient temperature and humidity. |
Wet Bulb Globe Test (WBGT) | A heat metric that takes into account ambient temperature, humidity, radiant heat from sunlight or artificial heat sources, and air movement. |
NIOSH Recommended Alert Limit (RAL) | The NIOSH-recommended heat stress alert limits for unacclimatized workers. |
NIOSH Recommended Exposure Limit (REL) | The NIOSH-recommended heat stress exposure limits for acclimatized workers. |
Indoors | An area under a ceiling or overhead covering that restricts airflow and has along its entire perimeter walls, doors, windows, dividers, or other physical barriers that restrict airflow, whether open or closed. (Construction activity is considered to be work in an indoor environment when performed inside a structure after the outside walls and roof are erected.) |
Outdoors | An area that is not indoors, as defined above. The definition also specifies that vehicles operated outdoors are considered outdoor work areas for purposes of the standard unless exempted. |
Shade | The blockage of direct sunlight and which is open to the outside air, such that objects do not cast a shadow in the area of blocked sunlight. It can be artificial shade (e.g., tent, pavilion) or natural shade (e.g., trees), but not shade from equipment. |
Employers and stakeholders may submit comments and attachments electronically to the Federal e-Rulemaking Portal at https://www.regulations.gov. Comments and attachments should be identified by your agency name and Docket No. OSHA–2021–0009. (NOTE: All submissions are placed in a public docket and can be viewed by anyone.)
Keys to remember: OSHA issued a Notice of Rulemaking on August 30, 2024, for the Heat Injury and Illness Prevention in Outdoor and Indoor Work Settings standard. Employers have 120 days to comment on the proposal.
At least 9 percent of the U.S. population has sleep apnea or a similar disorder, according to the American Medical Association. Given commercial drivers’ sedentary lifestyle and diet, the percentage may be higher for this group.
Below are five common questions that clarify the Federal Motor Carrier Safety Regulations (FMCSRs) requirements and Medical Review Board guidance.
A driver may not be medically qualified if they have a medical history or clinical diagnosis of a respiratory dysfunction likely to interfere with their ability to safely control a commercial motor vehicle (CMV) per 391.41(b)(5).
A lack of clarity stems from the fact that there is no regulatory mandate to screen for obstructive sleep apnea (OSA), even if specific risk factors are present, including but not limited to age, small airway, high body mass index (BMI), or large neck size. Also, the FMCSRs do not include waiting periods, maximum certification periods, specific diagnostic procedures or treatment, or requirements by which to assess compliance with OSA treatment.
The driver is asked on the "long form" or Medical Examination Report (MER) about whether they have daytime sleepiness, a sleep disorder, or snore loudly and if they have ever had a sleep test.
Those answers and the presence of any of risk factors, the Certified Medical Examiner (CME) must assess the likelihood of a safety issue while operating a CMV. The CME may also consult a November 2016 joint letter from Motor Carrier Safety Advisory Committee and Medical Review Board letter on sleep apnea for further guidance.
If a potentially unsafe condition is suspected, the FMCSA's Medical Advisory Criteria in Appendix A to Part 391 states that a CME "should," not "must or shall":
Sleep studies measure the Apnea-Hypopnea index (AHI), how often per hour a person stops breathing during the night.
Common next steps after the sleep study, depend on the sleep apnea severity, are:
Generally, compliant use of a CPAP machine means the driver uses the machine for at least four hours per night for 70 percent of the sleep periods for at least 30 days.
The final certification decision is up to the CME if the driver is otherwise qualified under all medical standards.
Upon being referred for a sleep evaluation, a driver can go to another CME for a second opinion. However, it would be extremely risky for the carrier to allow a driver with a documented referral for a sleep evaluation to go to another CME.
The driver must share the same medical history information with the second CME or possibly be subject to civil action per FMCSA for falsifying a medical exam.
Key to remember: A CME is recommended, but not required by regulation, to refer a driver with suspected sleep apnea or multiple risk factors for a sleep study. The CME makes the final certification decision.
Most motor carriers review their roadside inspection reports for the obvious reasons: fixing mechanical defects and identifying unsafe or noncompliant driver behavior.
Some violations are easy to decipher, such as a burned-out light bulb or exceeding the speed limit by a specific range. Others take a little more to figure out, such as doing the math to determine when and how a driver exceeded hours-of-service (HOS) limits. Then there are all those 392.2 violations with suffixes. Some count against a carrier’s Compliance, Safety, Accountability (CSA) scores, while others do not, depending on whether they contribute to causing a crash.
One that often baffles motor carriers is 392.2C.
Section 392.2C is enforcement’s code for “failure to obey traffic control device.” The C stands for control.
The citation appears in the severity table for the Unsafe Driving BASIC (Behavior Analysis and Safety Improvement Category). The violation has been assigned a value of 5 out 10, with 10 being the most severe. The violation is used when calculating both the carrier’s and driver’s Unsafe Driving BASIC scores.
In most instances, the traffic control device is not a signal light or stop or yield sign. Rather, it is the sign that instructs the driver to pull into a weigh station.
View our Weigh Stations ezExplanation for additional information. |
The vehicles that must stop at scales and inspection locations vary from state to state and even from location to location within a state. The “weigh scale ahead” or similar sign should be the driver’s guide.
If the sign reads:
Often those who operate commercial vehicles not requiring a commercial driver’s license, such as a large pickup truck or small box truck, mistakenly believe weigh scale inspections are just for larger rigs.
If a driver goes past a weigh station without pulling in as directed by a traffic control device, enforcement will pursue and pull over the driver. The officer will then escort the driver back to the weigh station for a roadside inspection.
Even if the driver was honestly confused whether the sign applied to the vehicle, it is too late. And more than likely enforcement’s interest has been piqued. It is highly unlikely the driver will be waived through at this point, and 392.2C will be entered on the roadside inspection report.
CSA’s enforcement model suggests finding the root cause of roadside inspection violations to prevent future occurrences and ultimately improve BASIC scores.
A violation of 392.2C may have one of several root causes, such as:
Whatever the reason, it must be addressed with the driver. Corrective actions range from refresher training to termination. If the driver was trying to avoid enforcement for other reasons (drugs, alcohol, over HOS limits), these other violations need to be addressed accordingly.
Key to remember: Failing to obey a traffic control device will be used in calculation of the CSA Unsafe Driving BASIC scores. Motor carriers should address the root cause of the violation so it does not recur.
Managing a DOT testing program can be likened to Murphy’s law: “Anything that can go wrong will go wrong.”
Some of the scenarios that program administrators deal with can be off-the-wall and just plain tricky. Often the situations are so complex that they require contacting the DOT for guidance on how to proceed. Consider the following three actual questions posed to J. J. Keller® subject matter experts on DOT drug and alcohol regulations. Two of the questions even stumped our experts, and we had to consult with the Federal Motor Carrier Safety Administration (FMCSA).
If you were asked these same questions, what would your answers be?
Question: During a roadside inspection, a driver who was operating a CDL vehicle was cited with 392.5(a)(3), possessing alcohol that is not manifested while on duty or operating a commercial motor vehicle. He possessed an unopened six-pack of beer that the officer saw in the truck’s cab. He wasn’t cited with being under the influence. Based on the citation appearing on the roadside inspection report, is this actual knowledge under 382.107 and reported by the motor carrier to the Drug and Alcohol Clearinghouse as an alcohol violation?
Answer:No. Even though the driver was engaging in behavior that violates 392.5, possession is not listed in Subpart B to Part 382 as prohibited behavior requiring the return-to-duty process and follow-up testing. According to 392.5, the driver is placed out of service for 24 hours, and any additional consequences would be based on company policy.
Question: A motor carrier has a drug-free workplace (non-DOT) testing program in addition to its DOT (Part 382) testing. The non-DOT drug panel covers the same substances as the DOT test. The carrier’s CDL drivers are placed in both testing programs.
One of the carrier’s CDL drivers failed a non-DOT random drug test. When approached about the results, she admitted that she used drugs. Is this a positive test that the medical review officer (MRO) should report to the Clearinghouse?
Answer: This is a trick question. The test results are not reported to the Clearinghouse, as there are no DOT consequences for failing a non-DOT drug or alcohol test. The MRO can’t report the results of a non-DOT test. However, in this scenario, the driver admitted to using the drugs found in the testing panel. After reaching out to FMCSA, J. J. Keller confirmed that the drug test result can’t be used as actual knowledge; however, the admission of drug use fits within the definition in 382.107.
Had the driver refused to comment on the result or denied drug use, then no violation was committed. It’s not actual knowledge, and nothing is reported to FMCSA.
Question: A driver was sent for a DOT return-to-duty drug test. The chain of custody showed that the clinic failed to observe the collection. The MRO did not cancel the test. Is a new test required?
Answer: At first, you might think the test should stand since failing to monitor a test when required is not a flaw (see 40.209(b)(6)) that cancels a test. However, after hearing anecdotal accounts from our customers that auditors were calling into question use of the unobserved tests when required, J. J. Keller reached out to FMCSA.
We asked how FMCSA auditors would perceive the situation. And we found that they would expect the carrier to send the driver for another return-to-duty or follow-up drug test since FMCSA regulations require that those test types be under direct observation.
Key to remember: Many things can and will go wrong in a DOT testing program, many of which are not addressed in the regulations. Those are times when you may need to seek out help, including reaching out to J. J. Keller® regulatory experts or FMCSA directly.
If you’re planning to start a motor carrier operation or add a different type of service to an existing business, you need to know what type of carrier you will be. Motor carriers are considered either a for-hire carrier or a private carrier. To be a private carrier, 100 percent of the company’s movements must be to support its own operation. If the carrier is engaged in any for-hire activities, the Federal Motor Carrier Safety Administration (FMCSA) considers them a for-hire carrier.
For-hire carriers use vehicles to transport people or property and are paid for their service. The fee could be a direct fee like a fare or a rate but could also be other indirect forms of compensation. Examples of for-hire operations include a trucking company that hauls other people’s property for a fee (direct compensation) or a hotel that includes in its service the transportation to and from the airport to the hotel (indirect compensation).
Private carriers, on the other hand, transport only their own goods or people. Examples include a manufacturer that uses its own commercial vehicles to transport its product, a construction or landscaping company that uses commercial vehicles to transport equipment and employees to job sites, or a utility company that operates commercial vehicles in support of its operations.
While private carriers are not required to obtain operating authority from the FMCSA, for-hire carriers are required to get authority to move property or people that belong to somebody else and get paid for their service. Having authority is often referred to as having an MC Number.
The most common types of authority are:
If a company never operates a commercial motor vehicle (CMV), it is possible to have authority, but not have a USDOT number. For example, straight brokers or freight forwarders.
As part of obtaining for-hire authority, carriers must designate process agents and demonstrate financial responsibility (have proper insurance coverage).
Authorities are not all-inclusive. Separate authority is needed for each type of service offered. For instance, a for-hire, over-the-road carrier that also wants to be able to resell its extra demand will need both for-hire and brokerage authorities. A company is required to pay a $300 one-time fee for each type of authority needed.
There are no temporary permits available to substitute for authority. For-hire operations may not be performed until the proper authority has been granted. It’s not uncommon for otherwise private carriers to become for-hire carriers to generate revenue on back-hauls or help balance capacity and demand during slow periods or seasons.
Carriers need to get it right when it comes to authority. Carriers required to have authority — but don’t and operate anyway — can get themselves into trouble. Penalties for operating without proper authority can get expensive and can result in out-of-service orders.
Key to remember: Carriers are either for-hire or private, with for-hire carriers being paid for their services while private carriers transport only their own goods or people.
Related article: Process agents — what are they and do you need them?
The U.S. Bureau of Labor statistics reported in July 2024 that there are 8.2 million job openings in the U.S., but only 7.2 million unemployed workers.
With that in mind, employers might choose to hang onto employees even if they’re under performing. But what about when complaints are rolling in from different angles? Take, for example, a lackluster supervisor who’s annoying employees and disappointing customers.
An employer could be hesitant to let the supervisor go, especially if there’s no documentation backing up claims of misconduct. The employer must weigh their options to decide if putting the supervisor on a performance improvement plan (PIP) or moving right to termination is the ideal choice.
At-will employment
For starters, in most states employers may terminate an employee at-will, meaning they can fire employees for pretty much any reason as long as it doesn’t discriminate against someone in a protected class based on sex, age, race, religion, etc. Employers also cannot terminate in retaliation for an employee making a claim of harassment, discrimination, or safety concerns.
Aside from these limits, employers can terminate employees for good cause, bad cause, or no cause at all.
PIP or terminate
Deciding whether to put an employee on a PIP or terminate must be decided on a case-by-case basis.
A PIP is usually for job performance issues (hence, performance improvement plan). This could mean anything from not making enough sales to being inept at the job’s essential functions. If job performance doesn’t improve under the PIP, termination may be the end result depending on company policies and practices.
Even if an employee has job performance issues, the employer can terminate without going through the PIP process first, unless the usual process is to implement a PIP with employees who have had similar problems. In that case, not doing a PIP could be seen as discrimination against an employee, especially if the person falls into a protected class.
Workplace misconduct, however, is another situation altogether. This could be anything from a one-off poor joke to pervasive harassment. Snapping at customers or coworkers (or worse), for example, is a conduct issue. An employer could issue a warning or move right to termination if the behavior is clearly illegal or a serious threat to workplace safety.
Read more: ezExplanation on discharging employees |
Termination tips
If an employer decides to terminate, they should treat the employee as respectfully as possible during the termination process. Also, an employer should carefully and clearly communicate the job-related reasons for the termination to avoid any hint of discrimination. Lastly, an employer should document the reasons and reiterate the steps taken leading up to the termination and keep those records handy in case the employee files a wrongful termination lawsuit.
Key to remember: Employers sometimes struggle when making termination decisions. Having a process in place and documenting steps along the way can help if a case lands in court.
Once upon a time, employees were unresponsive when asked to review their benefits. But after refreshing the message with stories, HR saw a happier ending to open enrollment.
Does that sound like a fairy tale?
The problem isn’t that employees are apathetic about benefits. After all, an attractive benefits package may be what brought some of them through the door in the first place.
Reviewing the benefit offerings that they were so eager to hear about as job candidates, however, now may cause employees’ eyes to glaze over. Workers who feel overwhelmed or confused by benefit information might ignore HR’s pleas to look over their options during open enrollment.
If this is the case in your organization, you’re not alone. Nearly 70 percent of benefits-eligible employees spend 30 minutes or less reviewing their options during open enrollment, while 42 percent spend 20 minutes or less, according to a 2023 Voya Financial survey. It’s no surprise then that around 90 percent choose the same options as they did the previous year, according to a report by Aflac.
The issue may be more pronounced for younger workers. The Voya research, for example, found that Generation Z employees—those born after 1997—reported even lower engagement in reviewing their benefits information compared to other generations.
Storytelling and having conversations with employees about their benefits can work wonders when it comes to getting the message out during open enrollment.
To inspire employees to think longer and harder about their choices, HR needs to help them understand how their benefits can, well, benefit them. To do this, you might try to find employees who are willing to share their stories about how they used their benefits in ways that made a difference in their lives. If this isn’t possible, insurance providers may have more generic stories to share.
For example, a company that offers optional accident insurance may struggle to convince employees to have extra money withheld from their paychecks to cover the premiums. If they hear a story about a coworker whose spouse fell off a ladder at home and broke an arm and how that optional insurance really paid off by covering costs the health plan did not, such as deductibles, more employees may opt into the accident insurance.
Stories and examples can have an impact because some people are more convinced when they hear about a real-life situation that happened to a person they know or can relate to. It tends to be more impactful than pages of insurance-industry lingo explaining the benefits.
Stories can take confusing information and illustrate it in a way that creates “aha” moments for employees to inform and engage them during the open enrollment process. Employees have diverse needs and different preferences, so using a variety of methods to reach them about their benefits is the best approach. Stories could be shared at a virtual benefits “fair” where employees are informed about available benefits options. Also consider mailing information, including stories about benefits, to employees’ homes, so other family members can read through it.
Employees who don’t take the time to review benefits information during open enrollment risk being under-insured and, as a result, could face financial issues. Help them make thoughtful decisions to get the most from the benefits available to them.
Key to remember: Telling stories is an effective way to engage employees in reviewing their benefit options during open enrollment.
Employers sometimes get tripped up on how to calculate the 1,250 hours worked eligibility criterion when employees need leave under the Family and Medical Leave Act (FMLA).
Does working overtime count toward the 1,250?
Recently, someone asked if overtime hours counted toward the 1,250 hours worked requirement (it does).
All hours actually worked apply to the 1,250, whether overtime or regular time, even if the overtime is not mandatory.
The 1,250 hours is calculated in relation to when the leave will begin, not when the employee puts an employer on notice of the need for leave.
Whether an employee is allowed to work overtime, however, is generally up to company policy. As far as pay goes, remember, if the employee is nonexempt (“hourly”) and works any overtime (mandatory or voluntary) the employee must be paid time and one-half for all hours worked over 40 within the workweek.
More about FMLA leave requirements
To be eligible to take FMLA leave, employees must:
Whether an employee has worked the minimum 1,250 hours is calculated based on determining compensable hours or work under the Fair Labor Standards Act (FLSA).
Calculating the 1,250 hours worked
When it comes to figuring out if an employee has worked at least 1,250 hours, it can get tricky. As was mentioned above, all hours worked, regular and overtime, must be counted.
Hours not worked should not be counted. The “not worked hours” include such time off as vacation time, sick leave, paid or unpaid holidays, or any other time in which an employee isn’t actually working — which can include disability, bereavement, FMLA and other forms of leave.
Once an employee meets the three eligibility criteria, including the 1,250 hours worked, for a particular leave reason, the employee remains eligible for the duration of the 12-month leave year period.
If the employee needs leave for another, different reason, eligibility would be recalculated.
Key to remember: All hours worked must be included in the 1,250 hours criterion when determining whether an employee is eligible for FMLA leave. Hours that aren’t worked (like vacation) are not included.
In part I of this series, the terms medical inquiries and medical exams were defined, and examples of what employers may not ask or require were illustrated. In this part, what questions and exams are allowed are discussed.
If another federal law requires certain questions and exams, employers will not violate the Americans with Disabilities Act (ADA) when asking the questions or requiring the exams.
Despite the questions employers are not allowed to ask (covered in part I of this series), they are allowed to ask some, such as asking employees:
Employers may require employees to undergo a number of procedures and tests that generally are not considered medical examinations, including:
Employers may also require employees to provide a doctor's note or other explanation to substantiate their use of paid or unpaid sick leave.
Generally, to make a disability-related inquiry or require a medical examination of an employee it must be job related and consistent with business necessity. This happens when an employer has a reasonable belief, based on objective evidence, that:
Having a blanket policy requiring all employees to disclose their medications, for example, would not focus on a particular employee, so it would violate the ADA.
Employers may make disability-related inquiries or require a medical exam when an employee who has been on leave for a medical condition seeks to return to work — if the employer has a reasonable belief that an employee's present ability to perform essential job functions will be impaired by a medical condition or that the employee will pose a direct threat due to a medical condition.
Simply saying an employee poses a direct threat is not enough; employers must be able to show that a direct threat exists and cannot be reduced or eliminated by reasonable accommodation.
Key to remember: Employers are not always prohibited from asking employees medical questions or requiring exams, but they must tread carefully.
It happens. An employee takes leave under the federal Family and Medical Leave Act (FMLA), and when they return, they want a different position or schedule. If, for example, an employee takes FMLA leave for the birth of a child and, because the employee’s personal situation has changed, the employee wants to change schedules.
Employers might wonder if the FMLA requires them to accommodate such a request, or whether employers can make a schedule change at their own discretion.
When FMLA leave ends, employees are entitled to return to the same position they held when leave began, or to an equivalent job with equivalent benefits, pay, and other terms and conditions of employment.
The FMLA does not prohibit employers from accommodating an employee's request to be restored to a different:
If an employee wants a change that better suits the employee's personal needs on return from leave, or to seek a promotion for a better position, that’s okay. Employers, however, are not required to honor those requests. They may deny such a request and return the employee to their original position.
Employers may not, however, induce an employee to accept a different position against the employee’s wishes.
Under the FMLA, an “equivalent position” is one that’s virtually identical (NOT similar) to the employee's former position in pay, benefits and working conditions. This includes aspects of the job such as privileges, perks, and status. The equivalent position must involve the same or substantially similar job duties and responsibilities. It must entail substantially equivalent skills, effort, responsibility, and authority.
Employees’ equivalent positions must also include the following:
An equivalent position does not extend to “de minimis” (minor), intangible, or immeasurable aspects of the job.
Not every task must be the same or equivalent, at least according to one 4th Circuit opinion from 2017. An employee, Gary, created a to-do list of tasks that he would need to handle if the company won the bid for a certain contract. The company did not win the bid for the contract, so the employee was put on other projects with different tasks after he returned from FMLA leave. He sued claiming that he was not returned to his same position as it did not include the tasks on his to-do list.
The court disagreed with the employee, indicating that an equivalent position need not have all the same tasks.
Waag v. Sotera Defense Solutions, Inc., 4th Circuit Court of Appeals, No. 15-2521, May 16, 2017.
Key to remember: While employers must return employees to their original or equivalent position after FMLA leave, they do not have to return them to one with different conditions, such as schedules.
The country’s first workplace violence prevention law for general industry took effect July 1, 2024. Most California employers had a steep learning curve the past few months as they geared up to comply with this new Cal/OSHA law. And the learning isn’t over yet.
The agency has been working on writing the standard (i.e., regulations) for the law— California Senate Bill 553 (SB 553)—and received public comments through September 3.
Once the agency reviews the comments and makes changes, they’ll likely release the standard sometime in 2025. The Occupational Safety and Health Standards Board (OSHSB) is required to adopt the standard no later than December 31, 2026.
Complying with the law without having specifics in place has been a challenge for some employers. The draft regulations, however, give California employers a sneak peek on what’s coming.
Cal/OSHA included the types of engineering controls organizations can put in place.
“Engineering controls” means an aspect of the built space or a device that removes a hazard from the workplace or creates a barrier between the worker and the hazard. For purposes of reducing workplace violence hazards, engineering controls include, but are not limited to:
“Work practice controls” means procedures, rules, and staffing which are used to effectively reduce workplace violence hazards. Work practice controls include, but are not limited to:
While California employers and companies with satellite offices located in the west-coast state meeting certain criteria need to comply, employers across the country can look to these draft regulations and use them as a starting point to improve safety measures at their organizations.
News reports following this week’s school shooting in Georgia indicate that recently implemented safety measures, like automatically locking doors and staff panic buttons, may have helped save countless lives.
As organizations nationwide continue to grapple with how to prevent violent incidents from occurring at their worksites, following California’s lead on implementing some control measures is a great place to start.
Key to remember: Cal/OSHA is closer to finalizing a new standard for the Workplace Violence Prevention Plan law that took effect this summer.
Did you know that an average of around 50 workers die every year due to falls from scaffolding? Thousands more are seriously injured. Is your team safe? Don’t wait to find out. Make sure your scaffolding work meets the minimum requirements for safety and compliance. The answers to the questions within this article could mean the difference between life and death.
In 1926.451(f)(3), OSHA requires that a competent person inspect the scaffold and scaffold components for visible defects before each work shift and after any occurrence that could affect the structural integrity.
OSHA defines a competent person as someone capable of identifying existing and predictable hazards in the surroundings or working conditions that are unsanitary, hazardous, or dangerous to employees and who has authorization to take prompt corrective measures to eliminate them.
Have a competent person inspect scaffolds and scaffold components for visible defects before each work shift and after any occurrence which could affect a scaffold’s structural integrity.
According to 1926.451, each scaffold and scaffold component must support without failure its own weight and at least four times the maximum intended load applied or transmitted to it.
OSHA also states that a qualified person must design the scaffolds, which are loaded in accordance with that design, and that scaffolds and scaffold components must not be loaded in excess of their maximum intended loads or rated capacities, whichever is less.
The short answer: One shift. One of the requirements in 1926 Subpart H - Materials Handling, Storage, Use, and Disposal, is 1926.250(b)(5), which states:
“Materials shall not be stored on scaffolds or runways in excess of supplies needed for immediate operations.”
Storing materials, such as masonry units on scaffolds several days in advance of work activities, as well as storing materials on scaffolds overnight in preparation for the next day, is prohibited.
For purposes of 1926.250(b)(5), “immediate operations” means work that will be done in the shift.
Also, note that some provisions in the actual scaffold standard would be difficult to meet if materials other than those needed for one shift are stored on a scaffold.
Scaffold planking must be able to support, without failure, its own weight and at least four times the intended load. Solid sawn wood, fabricated planks, and fabricated platforms may be used as scaffold planks following the recommendations by the manufacturer or a lumber grading association or inspection agency.
Tables showing maximum permissible spans, rated load capacity, and nominal thickness are in Appendix A(1)(b) & (c) of 1926.451(a)(1).
OSHA’s scaffolding standard at 1926.451(g)(1) requires employers to protect each employee on a scaffold more than 10 feet (3.1 m) above a lower level from falling to that lower level.
Per 1926.451(g)(4)(i), to ensure adequate protection, install guardrails along all open sides and ends before releasing the scaffold for use by employees other than the erection and dismantling crews.
Guardrails are not required, however:
Yes, a scissor lift is a “mobile scaffold” for which the platform only moves vertically. Employers need to evaluate and implement effective controls that address fall protection, stabilization, and positioning when using scissor lifts. Only trained workers are allowed to use scissor lifts.
Employers must provide fall protection for each employee on a scaffold more than 10 feet above a lower level. A competent person must determine the feasibility and safety of providing fall protection for employees erecting or dismantling supported scaffolds. Fall protection includes guardrail systems and personal fall arrest systems.
The specific type of fall protection required when working from a scaffold depends on the type of scaffold and the height above the lower level. It is important to refer to the relevant regulations and guidelines for detailed information.
If the operation is a construction operation, then the training requirements are at 1926.454. Assuming that the employees are already trained, retraining requirements are in 1926.454(c) and state:
"When the employer has reason to believe that an employee lacks the skill or understanding needed for safe work involving the erection, use or dismantling of scaffolds, the employer shall retrain each such employee so that the requisite proficiency is regained. Retraining is required in at least the following situations:
Key to remember: Scaffolding work can be dangerous. Make sure you train your workers and meet the minimum safety and compliance requirements to prevent serious incidents from occurring at your workplace.
It’s been over a month since OSHA’s new Hazard Communication (HazCom) rule took effect on July 19. A look at your most frequently asked questions shows labeling requirements top the list.
Yes, that’s still an option for in-house labeling of hazardous chemicals. Workplace labeling requirements are found at 1910.1200(f)(6). Employers can either:
The new rule added paragraph (f)(5)(ii), which addresses labels for bulk shipments. Bulk shipments are hazardous chemicals transported where the mode of transportation IS the immediate container. This includes shipments via tanker truck, rail car, or intermodal container. Labels for bulk shipments must be:
OSHA says in the preamble to the final rule that this allows for the full label information to be available to the downstream user upon receipt while recognizing the unique Department of Transportation (DOT) placarding issues for bulk shipments.
Additionally, the new rule clarifies in (f)(5)(iii) that pictograms are not required when a pictogram for the same hazard is already required by the DOT to be on a shipped container.
The small container labeling provisions at new paragraph (f)(12) apply to labels on shipped containers of hazardous chemicals (rather than in-house labels) where the chemical manufacturer, importer, or distributor can demonstrate that it’s not feasible to use pull-out labels, fold-back labels, or tags containing the full label information required by paragraph (f)(1).
For in-house labels, employers can continue to follow the requirements at (f)(6). If the secondary container is for “immediate use” – meaning that the hazardous chemical will be under the control of and used only by the person who transfers it from a labeled container and only within the work shift in which it is transferred – it doesn’t need to be labeled.
Key to remember: Overall, labeling requirements under 1910.1200 have not changed. However, the new rule adds provisions for labeling of bulk shipments and small containers.
Did you know that OSHA’s standard on permit-required confined spaces (PRCS) says entry occurs as soon as any part of the entrant’s body breaks the plane of the opening into the permit space?
Many workers and employers mistakenly think that placing part of the body or hands into a confined space isn’t entry. Knowing the difference between when entry occurs and not will help employers determine if a permit is required.
As clarified in an OSHA Letter of Interpretation (LOI) dated October 18, 1995, “When any part of the body of an entrant breaks the plane of the opening of a PRCS large enough to allow full entry, entry is considered to have occurred and a permit is required, regardless of whether there is an intent to fully enter the space.”
This definition of “entry” might seem to be too strict. Still, OSHA’s letter clarifies that there are situations where a partial entry would be hazardous: “Examples of situations where entry by only part of the body into a PRCS can expose an entrant to the possibility of injury or illness are as follows:
As another example, if the space contains a flammable or oxygen-enriched atmosphere, and if the activities during a partial entry could produce a spark or other ignition source, then a fire in the space could flash out of the opening and cause serious injuries to the employee.
This doesn’t necessarily mean you’d be fined if a permit wasn’t followed when someone reached a tank. OSHA’s guidance continues: “However, if entry by only part of the body does not expose the entrant to the possibility of injury or illness, then the violation may be considered a ‘de minimis’ violation.”
A de minimis violation is one in which a standard is violated, but the violation has no direct or immediate relationship to employee safety or health. These violations are documented but no citations are issued.
OSHA says examples of situations where entry by only part of the body into a PRCS would not expose an entrant to the possibility of injury or illness are as follows:
Also, consider a situation such as a worker reaching through a small grate to take a sample from a permitted space. The LOI further states, “If a part of the body were placed in an opening through which the worker could not pass into the permit-required confined space, no PRCS entry will have occurred.”
Keep in mind, however, that the employee would still need protection from any hazards involved in the task, but a permit would not be needed.
When any part of the body of an entrant breaks the plane of the opening of a PRCS large enough to allow full entry, entry is considered to have occurred, and a permit is required.
Ever since Canada legalized recreational cannabis back in 2018, it has left many motor carriers wondering if they can drug test their drivers. Impairment from cannabis use is a safety risk, and for most employers, performing drug tests to manage the risk is not an option. Where do motor carriers and drivers fit in, and what are their options?
Can motor carriers drug test their drivers? The short answer is no. Canada does not have a federal regulation that requires drug testing for drivers. However, this does not mean that Canadian motor carriers cannot implement and enforce a drug and alcohol policy for their drivers. In fact, many carriers have developed successful policies that minimize the risk of getting in trouble with the law and ensure the safety of their drivers and the public.
For the most part, drug testing not only violates the Human Rights Code, but it is also a gross infringement on an individual’s reasonable right to protection of privacy. Motor carriers operating in Canada need to make sure they consider the human rights and privacy rights of their drivers when implementing any type of drug testing program and policy.
Motor carriers have the right to expect their drivers to arrive at work fit for duty and remain that way throughout the duration of their shift. Communicating this expectation to them is important and, at a minimum, should be communicated by implementing a ”fit-for-work” policy that makes your expectations around impairment of any kind clear.
There are some circumstances in which drug testing is allowed, though they are rare and very specific.
1. Safety-sensitive positions: Universal random drug testing would be acceptable in workplaces that can be shown to be extremely dangerous and where a worker’s impairment would likely result in catastrophe. Based on this definition commercial truck drivers would be considered to be in a safety-sensitive position.
2. Reasonable suspicion of impairment: If an employee appears to be obviously impaired, drug testing may be permissible, especially if they’re involved in a collision and there is reasonable suspicion that they are under the influence of drugs.
3. As part of a rehabilitation/return-to-work program: A driver with substance abuse disorder may be subject to unannounced drug testing to be carried out as part of a rehabilitation program and return-to-work program.
Unlike in the United States, pre-employment drug testing is generally not permitted in Canada, except in limited circumstances. Each Canadian province has its own legislation regarding testing for drugs. In Alberta, the courts have been less protective of individual privacy rights and have allowed drug testing in the oil and gas sector. Most companies in Ontario and British Columbia opt not to test for drugs, adhering to human rights legislation and privacy concerns.
Motor carriers must inform their drivers about the drug and alcohol policy and unlike U.S. testing programs, are required to obtain their consent before conducting any test. By working together, motor carriers and drivers can create a safe and healthy work environment for everyone involved.
Carriers should update their policies addressing drug and alcohol use at least once per year. Carriers must pay close attention to:
Key to remember: Drug testing in Canada is legal but not regulated, so carriers must exercise caution when implementing a drug testing policy. There’s a fine line between allowable testing and human rights/employee privacy violations.
It is a common sight in many workplaces to see employees using compressed air to clean parts, equipment, and even clothing. What many workers and some employers do not realize is that compressed air can be deadly. That is why OSHA has a regulation prohibiting the use of compressed air for cleaning unless the dead-end pressure is reduced to below 30 psi, and then only with effective chip guarding and PPE.
The regulation Federal OSHA’s requirement for cleaning with compressed air is in 1910.242(b):
“Effective chip guarding” means any method or equipment which will prevent a chip or particle (of whatever size) from being blown into the eyes or unbroken skin of the operator or other workers.
Effective chip guarding may be separate from the air nozzle as in the case where screens or barriers are used. The use of protective cone air nozzles are acceptable in general for protection of the operator, but barriers, baffles or screens may be required to protect other workers if they are exposed to flying chips or particles.
The regulation requires the psi at the nozzle to be less than 30 when using compressed air for cleaning.
However, OSHA has said in interpretive guidance that the use of compressed air for cleaning purposes at pressures at or greater than 30 psi is permissible if the outlet or source is fitted with a relief device or air ports that drop the pressure to less than 30 psi if the flow is dead-ended.
While the regulation does not specifically address the issue, in a letter of interpretation OSHA said that employers should not allow employees to use compressed air for cleaning themselves or their clothing in general industry situations. The eyes and other body parts, such as the respiratory system, may be damaged as the result of inadequate personal protective equipment, lack of chip guards, and/or uncontrolled release of compressed air.
There are numerous dangers of improperly using compressed air:
Workers must be trained that even extremely low pressures, such as 5 or 10 psi, can still cause severe damage if pointed toward the body, particularly the mouth, eyes, ears, or open areas in the skin.
Employers should train employees on the dangers of compressed air, and ensure the equipment is equipped with the necessary safety features and is properly maintained.
Supervisors should watch for improper use, particularly horseplay, and initiate corrective action. In addition, for many applications, a broom or shop vacuum may be just as effective at cleaning, and much safer. Compressed air may seem harmless, but if strict safeguards and practices are not utilized it can be deadly.
Ever since OSHA published its Trade Release on December 11, 2023, people have been scratching their heads about the “new” PPE requirement.
But here’s the thing. There isn’t a new requirement for “helmets” instead of hard hats.
So where’s the confusion? And what is actually required?
OSHA released a Safety and Health Bulletin (SHIB 11-22-2023) on November 22, 2023, detailing the key differences and benefits of using modern safety helmets over traditional hard hats.
And just a few weeks later, in the December 11, 2023 Trade Release, the Agency announced it would now require its inspectors to wear Type II head protection, which is also commonly referred to as safety helmets.
The November 22, 2023 SHIB discussed two main benefits of choosing modern safety helmets over traditional hard hats -- the construction of materials and the use of chinstraps.
Construction of Materials: | The SHIB first explained that one of the benefits of safety helmets lies in their construction materials. While hard hats are made from hard plastics, safety helmets incorporate a combination of materials, including lightweight composites, fiberglass, and advanced thermoplastics. Such materials can help enhance the impact resistance of the helmets but also include the added benefit of reducing the overall weight of the helmet. This reduces neck strain and improves comfort during extended use. |
Use of Chinstraps: | The SHIB also discussed the potential benefits of chinstraps used in conjunction with Type II safety helmets. The general idea here is that chinstraps can be helpful in maintaining the position of the safety helmet and protecting the worker’s head in the event of a slip, trip, or fall. According to data from the Bureau of Labor Statistics, head injuries accounted for nearly 6% of non-fatal occupational injuries involving days away from work. About 20% of those were caused by slips, trips, and falls. |
And while OSHA has recognized the benefits of Type II safety helmets, and is actively taking steps to protect its own employees, it’s important to understand that there is not a new requirement for employers to make the switch to safety helmets.
That being said, a growing number of employers have recognized the benefits of added head protection and are choosing to use Type II helmets for their workers. In addition, some clients are starting to contractually require their construction contractors to make the switch as well.
Hard hats will have a Type I or Type II rating on the manufacturer’s sticker. These markings are based on ANSI Z89.1’s impact ratings.
Type I hard hats protect from objects or impacts from the top center area of the hard hat and are often used in work areas with no lateral head impact hazards.
Type II hard hats, on the other hand, offers protection from both top and lateral impacts and objects and is often found on construction job sites or complex general industry settings where workers face multiple head contact exposures.
Hard hats are classified based on their level of voltage protection. See the chart below.
Class G – (General) low voltage protection. Class E – (Electrical) high voltage protection. Class C – (Conductive) no voltage protection. |
Employers should conduct a job hazard analysis and/or a PPE assessment to determine which style hard hat is best for their workers. In general, OSHA recommends the use of Type II safety helmets at the following locations:
1. Construction Sites: For construction sites, especially those with high risks of falling objects and debris, impacts from equipment, or slips, trips, and falls, safety helmets have enhanced impact resistance and additional features that offer superior protection compared to the components and construction of traditional hard hats.
2. Oil and Gas Industry: In these sectors where workers face multiple hazards, including potential exposure to chemicals and severe impacts, safety helmets with additional features can provide comprehensive protection.
3. Working from Heights: For tasks or jobs that involve working from heights, safety helmets offer protection of the entire head and include features that prevent the safety helmet from falling off.
4. Electrical Work: For tasks involving electrical work or proximity to electrical hazards, safety helmets with non-conductive materials (Class G and Class E) provide protection to prevent electrical shocks. However, some traditional hard hats also offer electrical protection.
5. High-Temperature Environments: In high temperatures or where there is exposure to molten materials, safety helmets with advanced heat-resistant properties can provide additional protection to workers.
Key to remember: While there isn’t a new requirement for safety helmets, employers should review their workplace hazards to determine which style of hard hat will best protect their employees.