Avoiding misconceptions about safety motivation

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Avoiding misconceptions about safety motivation

2021-09-09T05:00:00Z

A number of clichés are commonly used in an attempt to motivate desired behaviors, but each has some pros and cons. Below are some phrases you might have heard, or might even have used yourself.

There is no “I” in team

True, but smart supervisors get to know each worker as an individual to understand their preferences. Some of the best safety programs encourage individuals to embrace the company’s safety culture by adopting a personal commitment to safety and health.

That said, group efforts can be effective in motivating safe behavior. After individual employees adopt a personal commitment to safety, the next step is getting them to become active participants in the safety of those around them. Ideas that work for groups include setting group safety goals and creating recognition programs.

Work smarter, not harder

Properly trained employees are better able to spot hazards and report them, which prevents accidents and injuries. Once they recognize the benefits of safety, they’ll be more motivated to adopt your safety goals.

Unfortunately, safety requires hard work that includes learning and remembering procedures, as well as forming habits to follow procedures consistently. Supervisors need to stay on top of safety rules, conduct regular safety audits, train and re-train employees, and of course supervise workers on a daily basis.

Think outside the box

A little creativity can help identify hazards, discover effective solutions, and improve working conditions. At the same time, many processes require workers to follow specific steps or procedures.

Encourage workers to share ideas for new ways of working, but remind them that changes or shortcuts could introduce new hazards. Encourage creative ideas, but remind everyone that a new procedure will require evaluation before implementation.

Lead, follow, or get out of the way

As a motivational saying, this one lacks compassion. Employees respond better to encouragement than to pressure. While leading and following each have a place, most organizations combine the two.

Employees (and supervisors, for that matter) can lead from the middle, such as always wearing appropriate personal protective equipment. This combines following the rules with leading by example.

Tailor your approach

Good motivation offers a mix of encouraging leadership and participation in the safety program. Examples include programs offering rewards for submitting safety suggestions, or individual approaches such as recognition by the supervisor.

No single approach will motivate every employee. Differences in education and personal preferences can challenge any supervisor. Using a combination of approaches — beyond tossing out clichés — will be necessary to build and retain a focus on safety.

A number of clichés are commonly used in an attempt to motivate desired behaviors, but each has some pros and cons. Below are some phrases you might have heard, or might even have used yourself.

There is no “I” in team

Work smarter, not harder

Think outside the box

A little creativity can help identify hazards, discover effective solutions, and improve working conditions. At the same time, many processes require workers to follow specific steps or procedures.

Lead, follow, or get out of the way

As a motivational saying, this one lacks compassion. Employees respond better to encouragement than to pressure. While leading and following each have a place, most organizations combine the two.

Employees (and supervisors, for that matter) can lead from the middle, such as always wearing appropriate personal protective equipment. This combines following the rules with leading by example.

Tailor your approach

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Most Recent Highlights In Environmental

2024-09-30T05:00:00Z

Our Nation’s air — A recap of 2023

Implementation of the Clean Air Act in 1970 has fueled impressive long-term emissions reductions, improving the air we breathe. Still, approximately 140 million Americans live in counties where air quality concentrations are above set levels. While long-term trends continue to improve, the Environmental Protection Agency (EPA) states that there’s still work to be done.

Continued emissions reduction

The Clean Air Act requires EPA to set National Ambient Air Quality Standards (NAAQS) for six principal pollutants called criteria air pollutants, which can be harmful to public health and the environment.

Between 1970 and 2023, the combined emissions of these criteria pollutants have dropped by 78 percent. This is of particular significance due to the continued growth of the U.S. economy by 320 percent over that same period of time. Since 1990, air pollutant concentrations of these six key pollutants have declined as follows:

Carbon monoxide (CO) 8-hour is down 79 percent.
Lead (Pb) 3-month average is down 87 percent (since 2010).
Nitrogen dioxide (NO₂) annual is down 62 percent.
Nitrogen dioxide (NO₂) 1-hour is down 55 percent.
Ozone (O₃) 8-hour is down 18 percent.
Particulate matter 10 microns (PM₁₀) 24-hour is down 29 percent.
Particulate matter 2.5 microns (PM_2.5) annual is down 37 percent (since 2000).
Particulate matter 2.5 microns (PM_2.5) 24-hour is down 29 percent (since 2000).
Sulfur dioxide (SO₂) 1-hour is down 92 percent.

Effects on health and the environment

The link between air pollution and these criteria air pollutants contributes to a variety of health problems and impacts on the environment. Breathing elevated levels of CO can decrease the amount of oxygen reaching a person's organs and tissues. Lead exposure can harm the development of children, leading to lower IQs, learning deficits, and behavioral problems. Short-term exposure to NO₂ can aggravate asthma and other respiratory diseases. The environmental effects of ozone include damage to vegetation by injuring leaves, which reduces photosynthesis, therefore impairing growth and decreasing crop yields. Particulate matter in the air is the main cause of reduced visibility in parts of the U.S. It can settle on soils and surface waters, which can change the pH, deplete nutrients, and negatively affect ecosystems.

Actions being taken

EPA and states continue to track emissions data from industry, state, tribal, and local agencies from sources in their jurisdictions, including:

Highway vehicles;
Industrial and other processes (e.g., smelters, refineries, and dry cleaners);
Non-road mobile sources (e.g., recreational and construction equipment, marine vessels, aircraft, and locomotives); and
Stationary fuel combustion sources (e.g., electric utilities and industrial boilers).

The government continues to invest in climate pollution action efforts to improve the economic and public health of those living in the country, including:

Creating rules to reduce methane emissions from oil and natural gas operations,
Updating pollution standards for the transportation industry,
Establishing greenhouse gas standards for heavy-duty vehicles,
Implementing standards for existing coal-fired and natural gas-fired power plants,
Investing in infrastructure, and
Working to embed environmental justice in all of EPA’s work.

Key to remember: While long-term trends continue to show an improvement in the air we breathe, EPA states that there’s still work to be done.

2024-09-25T05:00:00Z

EPA extends 2024 Chemical Data Reporting deadline

The Environmental Protection Agency (EPA) has extended the submission period for the Chemical Data Reporting (CDR) report. The submission period opened on June 1, and EPA has pushed the submission deadline from September 30 to November 22, 2024.

Who’s impacted?

Under the Toxic Substances Control Act (TSCA), EPA’s CDR rule requires manufacturers (including importers) of chemicals on TSCA’s Chemical Substance Inventory to report information on the production and use of the chemicals in commerce if they meet certain production volume thresholds at any one site.

Why the delay?

The deadline extension is due to technical errors with e-CDRweb, the electronic reporting tool on EPA’s Central Data Exchange system that reporters use to submit the CDR report (Form U). The specific issue only impacts submissions with multiple confidential business information (CBI) claims for chemical identity.

The tool’s copy function fails to properly capture the substantiations submitted by facilities making multiple CBI claims, leaving out some of the questions and answers. Additionally, it doesn’t let submitters who used the copy function add the missing information.

EPA expects to fix the reporting tool by the end of September.

About the 2024 CDR report

The CDR report is submitted to EPA every four years. The 2024 CDR report covers activities that occurred between the calendar years 2020 and 2023. Note that this extension applies only to the 2024 CDR submission period.

Key to remember: Due to technical difficulties with the electronic reporting tool, EPA has extended the 2024 Chemical Data Reporting submission deadline to November 22, 2024.

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2024-09-24T05:00:00Z

3 compliance agencies dubbed hardest nuts to crack, per healthcare poll

It’s no secret that the healthcare industry is swamped by government requirements from a host of federal, state, and local agencies. New survey results put three agencies in a near tie for the “greatest compliance challenge” category for leaders, managers, and others in healthcare.

Two of the agencies may be no surprise — the Centers for Medicare & Medicaid Services (CMS), and the Centers for Disease Control and Prevention (CDC). However, some might be taken aback to learn that the Occupational Safety and Health Administration (OSHA) ranked just as challenging to comply with for the healthcare industry.

The lion’s share of the attention in healthcare has long been on patient care and safety. Therefore, to discover that OSHA — a worker safety and health agency — weighed in as a huge pain point with the other two agencies should raise eyebrows.

Survey data

An August 2024 survey report from the J. J. Keller Center for Market Insights recently tapped 220 professionals from healthcare. This included respondents from clinics/offices; hospitals; ambulatory, nursing, and home care services; outpatient facilities; behavioral health services; medical/dental labs; and other healthcare service types.

As stated, the CMS, CDC, and OSHA each took over 20 percent of the findings in answer to the question, “What government entity’s standards pose the greatest compliance challenge(s) to your organization?” Together, these three stand out from any others for that survey question. In total, they racked up 75 percent of the results!

Other agencies and organizations made up another 10 percent in aggregate, while “none of the above” garnered 14 percent.

Healthcare is dogged by OSHA

OSHA’s mission is “to assure America’s workers have safe and healthful working conditions.” While patient safety is not part of that mission, worker safety and health efforts can spill over into that space. For example, ensuring that workers have proper means of egress and fire protections relates to patient safety. In fact, patient safety efforts may not succeed without safe healthcare workers.

OSHA requires private-sector healthcare employers to provide workers with a safe and healthful work setting free of known serious hazards. The agency has over 1,600 pages of regulations covering general industry, and that includes healthcare. These regulations are complex, but healthcare employers must comply with all applicable requirements.

Healthcare organizations have well over 100 applicable OSHA regulations. The top-cited OSHA regulations for hospitals in fiscal year 2023 include:

OSHA’s Healthcare topic page also showcases regulations for personal protective equipment, formaldehyde, ethylene oxide, ionizing radiation, chemical hazard communication, and laboratories.

Yet, the agency’s reach can go beyond regulations. Hazards related to ergonomics, workplace violence, and infectious diseases may be cited. The citations point to section 5(a)(1) of the Occupational Safety and Health Act, which calls for worker protections from serious, recognized hazards. Also, OSHA officers follow the agency’s “Inspection Guidance for Inpatient Healthcare Settings,” which targets lifting-related musculoskeletal disorders, workplace violence, tuberculosis, and other hazards.

OSHA and state-plan state inspections are unannounced — they can happen at any time! In addition, an OSHA penalty can reach over $161,000 per violation.

Industry hit by worker injuries/illnesses

Statistics show that healthcare settings are hazardous places to work! The injury/illness incidence rates for hospitals and nursing and residential care facilities are higher than in the construction industry!

Note that the Bureau of Labor Statistics reveals that the leading injury/illness events with days away from work in hospitals in 2021 and 2022 were:

Exposure to harmful substances/environments (like COVID-19),
Overexertion/bodily reaction (like patient handling), and
Slips/trips/falls.

Because of the severity of some injuries/illnesses and the potential for a worker to suffer one, it’s critical to meet OSHA regulations and beyond. Worker injuries/illnesses come at a high cost that most healthcare facilities likely cannot afford.

The good news is OSHA compliance can lead to a marked decline in worker injuries/illnesses. Even accreditation organizations like The Joint Commission expect to see compliance with applicable OSHA regulations. That’s because meeting OSHA worker safety and health regulations has been discovered to have a positive effect on patient safety. A stable workforce with few worker injuries/illnesses creates a setting conducive to patient confidence and satisfaction.

Where to start

OSHA has resources such as a small business handbook, quick start page, and Hospitals eTool. However, given the importance of OSHA compliance and the challenges it poses to healthcare, it may be wise to have a third party do a comprehensive OSHA compliance audit of each healthcare facility. This is particularly true if leadership is new to workplace safety or does not have the in-house expertise. This baseline may help the facility spot the major hazards and flag OSHA requirements for the site.

The agency recommends that employers conduct compliance inspections at least quarterly. This would be more often if conditions change frequently.

Key to remember

OSHA, along with the CMS and CDC, top the list of compliance challenges for healthcare. A third-party audit or inspection may help these facilities get a handle on the requirements.

2024-09-24T05:00:00Z

How to conduct 3 types of solid waste assessments

No organization wants to throw away the chance to improve operational efficiency. Yet, many businesses unknowingly discard such opportunities by overlooking a process that happens every day: nonhazardous (solid) waste management. That’s where a waste assessment comes in; it’s a tool that can help your facility avoid wasted opportunities.

Why conduct a solid waste assessment?

The ultimate goal of a solid waste assessment is to achieve operational efficiency by cutting the amount of waste a facility generates and improving management practices for waste that can’t be eliminated. As a result, facilities send less waste to landfills (minimizing environmental impact) and require fewer resources for waste management (cutting costs).

Through a waste assessment, your facility can:

Evaluate waste streams (i.e., the flow of waste from creation to disposal),
Analyze current waste management processes (including sorting, storing, and disposing methods), and
Identify ways to improve waste management (such as modifying products or recycling).

Types of solid waste assessments

The Environmental Protection Agency (EPA) identifies three leading methods for conducting waste assessments: records examinations, walkthroughs, and sorts.

Records examinations

A records examination answers two questions: How does your facility remove solid waste (landfill vs. recycling), and how much does it cost your facility to remove it?

First, calculate the total amount of waste removed (typically in pounds) and total costs for:

Collection (conducted via a contractor or internally),
Container and dumpster rentals,
Removal (e.g., flat, per-weight/volume, or per-pull fees), and
Disposal, including landfill tipping fees (if applicable).

Next, using the same measurement units, sum up the number of recyclables collected and recycling costs for:

Collection (conducted via a contractor or internally),
Container and dumpster rentals,
Removal (e.g., flat, per-weight/volume, or per-pull fees), and
Revenues for each product or material (if applicable).

Finally:

Subtract the total weight of recyclables collected from the total weight of all waste removed to determine the total weight of waste sent to landfills, and
Subtract the total recyclables costs from the total waste costs to determine the various costs for landfill wastes (e.g., total waste collection costs – total recyclables collection cost = total landfill collection costs).

Facility walkthroughs

A facility walkthrough requires physical observation of the processes that generate waste and the types of waste they create.

Each facility can tailor the walkthrough process to its unique objectives. However, effective walkthroughs generally incorporate these elements:

Alert the department leaders of upcoming walkthroughs.
Interview workers in each walkthrough area. Employees can ask questions about waste management processes, and you can ask for valuable input from those directly involved.
Ask whether variations occur in the waste generated (e.g., increased waste during delivery days) and if any new equipment or procedures will affect the waste created.
Identify current waste-reduction efforts.
Look for processes that generate unnecessary waste.
Include waste generated by maintenance operations.

Waste sorts

Sometimes, the most effective assessment requires a hands-on approach, and that’s what a waste sort delivers. It enables you to estimate how much each type of waste contributes to the total amount of generated waste.

Gather a representative sample of waste, such as daily waste generated.
Sort the waste into major categories, like paper, plastics, etc.
If applicable, sort the major categories into subcategories, such as glass by color.
Weigh each container of waste.

Remember to weigh the containers when they’re empty. Subtract the weight of the empty containers from the weight of waste to obtain each subcategory’s net component weight. Add these measurements to obtain the total weight of waste generated.

Which waste assessment method is best for your facility?

The “right” waste assessment is unique to each facility. You can use one method or a combination. When selecting the waste assessment(s) to use, consider these factors:

What type of data do you need? Should the assessment provide quantitative data (e.g., the weight of waste produced), qualitative data (e.g., how the waste is produced), or both?
What types of waste do you want to assess? Do you want to look at just one or multiple kinds?
What’s the scope of your assessment? Do you want to target a specific process, one or more departments, or the entire facility?
What resources are available? How much time and manpower can you allocate toward conducting an assessment?

Key to remember: Waste assessments help facilities improve operational efficiency by identifying ways to reduce waste and enhance waste management practices.

2024-09-23T05:00:00Z

Reclassification of major sources to area sources rule paves the way for cleaner air and streamlined compliance

The "Review of Final Rule Reclassification of Major Sources as Area Sources Under Section 112 of the Clean Air Act” rule allows certain major sources to reclassify as area sources under specific conditions. The reclassification process typically involves a review of the source's emissions profile, its location within a specific air quality nonattainment area, and other relevant factors. If it’s determined that a major source isn’t making a substantial contribution to air quality problems, it may be eligible for reclassification as an area source. Under this rule (finalized on August 30, 2024), the Environmental Protection Agency (EPA) allows a major source of hazardous air pollutants (HAPs) to reclassify as an area source after acting to limit emissions under the National Emission Standards for Hazardous Air Pollutants (NESHAP) program. However, sources of persistent and bioaccumulative HAPs listed in Clean Air Act (CAA) Section 112(c)(6) must continue to comply with certain major source emission standards under Sections 112(d)(2) or 112(d)(4) even if these sources reclassify as area sources.

The seven persistent and bioaccumulative HAPs include:

Alkylated lead compounds,
Polycyclic organic matter (POM),
Mercury,
Hexachlorobenzene,
Polychlorinated biphenyls (PCBs),
2,3,7,8-tetrachlorodibenzofurans (TCDF), and
2,3,7,8-tetrachlorodibenzo-p-dioxin (TCDD).

The following subparts are included in the list of NESHAPs (see 40 CFR 63.1(c)(6)(iii)) that cannot be avoided through reclassification:

Subpart FFFF (miscellaneous organic chemical manufacturing),
Subpart JJJJ (paper and other web coating),
Subpart MMMM (surface coating of miscellaneous metal parts and products),
Subpart PPPP (surface coating of plastic parts and products),
Subpart ZZZZ (stationary reciprocating internal combustion engines),
Subpart CCCCC (coke oven pushing, quenching, and battery stacks),
Subpart DDDDD (boilers and process heaters),
Subpart FFFFF (iron and steel manufacturing facilities),
Subpart IIIII (mercury cell chlor-alkali plants),
Subpart LLLLL (asphalt processing and roofing manufacturing),
Subpart YYYYY (area source electric arc furnace steelmaking facilities),
Subpart JJJJJJ (area source boilers), and
Subpart EEEEEEE (area source gold mine ore processing and production ).

Implications for reclassified facilities

• Continued compliance: Facilities that have already reclassified from major to area source status and fall under one of the listed subparts will need to continue to comply with the associated maximum achievable control technology (MACT) requirements, including monitoring, recordkeeping, testing, and reporting. MACT standards are performance criteria that apply to major sources.

• Potential challenges: Reclassification may have been a strategy to reduce regulatory burden. However, the new limitations could increase the compliance costs and operational challenges for affected facilities.

Exemptions and uncertainties

• Stationary combustion turbines: The NESHAP for stationary combustion turbines isn’t included in the list of affected subparts, providing some relief for facilities using this technology.

• Retroactive applicability: The final rule doesn’t specifically address whether the effective date of reclassification is the revised permit, notification to EPA or date of change in potential emissions. This uncertainty could impact facilities that have recently reclassified.

Overall, the new reclassification limitations will have significant implications for facilities operating under the affected NESHAP subparts. It’s essential for affected facilities to carefully review the specific requirements and consider the potential impacts on their operations.

Key to remember: EPA finalized requirements for sources that reclassify from major source status to area source status under the National Emission Standards for Hazardous Air Pollutants (NESHAP) program. Sources subject to certain major source NESHAPs for seven specific pollutants must remain subject to those NESHAPs even if the sources reclassify to area source status.

Most Recent Highlights In Transportation

2024-09-16T05:00:00Z

Reclassifying facilities must keep stricter emission standards for 7 HAPs

A final rule issued by the Environmental Protection Agency (EPA) in September 2024 requires facilities that reclassify from major to area source status under the National Emission Standards for Hazardous Air Pollutants (NESHAP) program to continue to meet the major source emission standards for seven persistent and bioaccumulative hazardous air pollutants (HAPs).

Who does this impact?

The final rule applies to facilities subject to any of the seven major source NESHAPs that reclassify from major to area source status. The major and area source categories differ based on the emissions and/or potential to emit (PTE) certain hazardous air pollutants. Major sources emit or have the PTE:

10+ tons per year of one HAP, or
25+ tons per year of a combination of HAPs.

Area sources are facilities with actual and/or potential emissions below these thresholds.

Which HAPs are affected?

The final rule targets seven HAPs:

Alkylated lead compounds,
Hexachlorobenzene,
Mercury,
Polychlorinated biphenyls (or PCBs),
Polycyclic organic matter (or POM),
2,3,7,8-tetrachlorodibenzofurans (or TCDR), and
2,3,7,8-tetrachlorodibenzo-p-dioxin (or TCDD).

What are the notification changes?

The final rule also made minor adjustments to the reclassification notification requirements. Specifically, the agency clarifies that facilities must:

Submit reclassification applications electronically through the Compliance and Emissions Data Reporting Interface on EPA’s Central Data Exchange, and
Include the required information listed at 40 CFR 63.9(j)(1)–(4).

EPA also added electronic submission procedures for confidential business information.

Key to remember: Facilities that reclassify from major to area source status under EPA’s NESHAP program must continue complying with the major source emission standards for seven hazardous air pollutants.

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2024-09-13T05:00:00Z

Guide to underground storage tank financial requirements

With great hazards comes great financial responsibility. This certainly applies to owners and operators of underground storage tanks (USTs). The Environmental Protection Agency (EPA) requires most UST owners or operators to show that they have the financial resources to take corrective actions should an accidental leak happen.

When a UST leaks, the substance can leach into the soil and contaminate groundwater, which supplies drinking water for nearly half of Americans. Leaks also pose risks of fire and explosions. With funds prepared in advance, owners and operators can start cleanups sooner and, therefore, reduce the risk of harm to human health and the environment.

Who’s covered, and what’s covered?

The financial responsibility regulations (40 CFR Part 280 Subpart H) apply to owners or operators of USTs that store petroleum. Owners or operators must show that they have the financial ability to pay for:

Cleanup costs,
Corrective actions to address environmental damage, and
Third-party injuries and property damage.

If the owner and operator are different individuals, it’s up to the organization to decide whether the owner or operator demonstrates financial responsibility. However, it’s important to note that both parties are liable for noncompliance.

What’s the amount of coverage required?

The amount of financial coverage required depends on your type of business, the throughput (i.e., the volume of petroleum loaded into or dispensed from the tank), and the number of USTs.

Type of business

EPA categorizes the types of businesses into two groups:

Petroleum producers, refiners, and marketers (i.e., those who sell gasoline to the public, like service stations); and
Nonmarketers (i.e., those who use petroleum only for internal operations, such as fleet operators).

Owners or operators must have both per-occurrence coverage (the total cost of one leak) and annual aggregate coverage (the total cost of all leaks that might occur in a year).

Throughput

A UST’s throughput determines the per-occurrence coverage:

Regardless of throughput, petroleum producers, refiners, and marketers must have $1 million of per-occurrence coverage.
Nonmarketers must have $500,000 of per-occurrence coverage if monthly throughput is 10,000 gallons or less. If monthly throughput exceeds 10,000 gallons, nonmarketers must have $1 million of per-occurrence coverage.

Number of USTs

The same thresholds for aggregate coverage apply to both types of businesses:

Owners or operators must have $1 million in aggregate coverage if they have no more than 100 USTs.
Owners or operators must have $2 million in aggregate coverage if they have more than 100 USTs.

What are the methods for demonstrating financial responsibility?

Owners or operators may show their financial responsibility through one or a combination of the methods detailed at 280.95–280.103. The method(s) you choose must cover all costs (cleanup, corrective actions, and third-party liability) and meet the required coverage amount.

The table lists the top advantages and disadvantages to consider for each method.

UST financial responsibility methods
Method	Pro	Con
Financial tests	Leverage existing assets without incurring extra costs	Requires tangible net worth of at least $10 million
Guarantees	Leverage existing business relationship with another firm	Provider must pass a financial test
Insurance and risk retention group coverage	Expand existing insurance policy	Requires additional costs (premiums, deductibles, etc.)
Surety bonds	Typically, more cost-effective (requires minimum premium payment)	May have to pay back the full bond amount as well as interest and fees
Letters of credit	Customizable terms and conditions	Requires additional costs (namely, service fees)
State fund or other state assurances	Financial help for cleanup and third-party liability costs	May pay only part of the costs or require a deductible
Trust funds	Customizable terms and conditions	Generally, must pay the full aggregate amount upfront and additional costs (fees, taxes, etc.)
Standby trust funds	Typically, don’t have to pay upfront to establish the fund	Requires additional costs to run the trust
*State-required methods	*You may use any state-required methods approved by the regional administrator.

What happens if a financial assurer cancels my coverage?

Financial assurance providers may cancel or not renew your assurance. EPA requires assurers to notify the UST owner or operator before terminating coverage:

Insurance or risk retention coverage (except for nonpayment or misrepresentation) and state-funded assurance may not stop until at least 60 days after notification.
Guarantees, surety bonds, and letters of credit may not stop until at least 120 days after notification.

Generally, you must establish alternate coverage within 60 days of learning that your financial assurer will stop coverage.

Check your state’s regulations!

The regulations for tanks in a state with EPA approval to implement a state UST program may differ from federal rules. USTs in a state without EPA state program approval are subject to federal and state requirements.

Key to remember: EPA regulations require underground storage tank owners or operators to prove they can cover the financial costs of an accidental leak.

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EHS Monthly Round-Up - August 2024

In this August 2024 roundup, we'll review the most impactful environmental, health, and safety news.

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!

2024-09-06T05:00:00Z

Expert Insights: What's an environmental incident?

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 to what level they’re addressed.

If your organization has multiple locations, does it make sense to establish 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 who operates three beverage manufacturing facilities and a dozen distribution centers. Because the risks and materials 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 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.

2024-08-20T05:00:00Z

Characteristic hazardous wastes: When actions speak louder than lists

“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:

It appears on any of the four lists at 40 CFR Part 261 Subpart D (called a listed waste),
It exhibits one or more of four hazardous characteristics (called a characteristic waste), or
Both.

Whether or not it’s a listed waste, you must determine if each waste you produce is a characteristic waste.

Characteristic hazardous wastes

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:

Liquids with flash points below 60 degrees Celsius;
Non-liquids that can cause fire under standard temperature and pressure through friction, absorption of moisture, or spontaneous chemical changes;
Ignitable compressed gases; and
Oxidizers.

Common ignitable wastes are paints and degreasers.

2. Corrosivity

Corrosive wastes dissolve metals and other materials. Such wastes include:

Aqueous wastes with a pH of:
- Less than or equal to 2, or
- Equal to or greater than 12.5.
Liquid wastes that corrode steel under certain conditions.

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:

Wastes that are normally unstable and can easily undergo violent changes without detonating;
Wastes that react violently with water;
Wastes that form potentially explosive mixtures with water;
Wastes that give off dangerous amounts of toxic gases, vapors, or fumes when:
- They’re mixed with water, or
- They contain cyanide or sulfide and are exposed to pH conditions between 2 and 12.5.
Wastes that can detonate or have an explosive decomposition or reaction at standard temperature and pressure;
Wastes that can detonate or have an explosive reaction when subject to a strong initiating source or heated under confinement; and
Wastes considered forbidden explosives or Division 1.1, 1.2, or 1.3 explosives (per Part 173).

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.

Is it a characteristic waste?

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:

Applying acceptable knowledge defined at 262.11(d)(1), and/or
Testing the waste via approved methods (required when you can’t make a determination based on the available information).

Characteristic hazardous wastes comparison table

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	1010B 1020C 1030	9040C 1110A	None	1311
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:

Designate solid waste (defined at 261.2) at the point it’s generated before diluting, mixing, or otherwise altering it.
Use all relevant EPA Hazardous Waste Numbers for compliance with applicable RCRA notification, recordkeeping, and reporting requirements.
Evaluate every waste for hazardous characteristics, even for listed wastes.

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.

Public Administration Manufacturing (32/Non-Durable)Waste Management Professional Services Mining Utilities Real Estate Repair Services Retail Healthcare Personal Services Manufacturing (31/Food/Textiles)Transportation Wholesale Distribution Entertainment Construction Warehousing Manufacturing (33/Durable)Oily Rags Pharmaceutical Waste Garbage Chemicals Municipal Solid Waste RCRA Recycling Reactivity P Codes EHSs Aerosol Cans Conditionally Excluded Waste Corrosivity Trash Solvent Waste Hazardous Chemicals Residues Shop Rags Hazardous Secondary Materials Chemical Lists CERCLA Hazardous Substances Solvent Contaminated Wipes Toxicity Listed Waste Precious Metals Cathode Ray Tubes HazWaste Toxic Substances Acute Waste Characteristic Waste CRTs Waste Codes Toxic Chemicals Highly Hazardous Chemical Extremely Hazardous Substances U Codes HHC Resource Conservation and Recovery Used Batteries Ignitability Landfilling Non-Acute Waste r40CFR261 40 CFR 261 40 CFR 261 Identification and listing of hazardous waste

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2024-08-05T05:00:00Z

Industrial wastewater discharges: NPDES permits get to the point (source)

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.

Does my facility require an NPDES permit?

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.

Does the facility discharge covered pollutants?

The NPDES permit covers any kind of industrial, municipal, and agricultural waste that’s discharged into waters of the United States. It encompasses:

Conventional pollutants, such as oil and grease;
Nonconventional pollutants, like phosphorus; and
Toxic pollutants, including solvents and metals.

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.

Is the facility a point source?

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.

Does the facility discharge into waters of the United States?

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:

January 2023 — EPA and the Department of the Army updated the definition (Revised Definition of “Waters of the United States” rule).
May 2023 — The U.S. Supreme Court’s decision in Sackett v. EPA (Case No. 21—454) made parts of the Revised Definition of “Waters of the United States” rule invalid.
August 2023 — The agencies amended the Revised Definition of “Waters of the United States” rule to conform it to the Supreme Court’s decision. The final rule (Revised Definition of “Waters of the United States, Conforming” rule) took effect in September 2023.

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.

What’s next?

Now that you’ve determined your facility needs an NPDES permit, it’s time to apply for one:

Connect with the state water permitting agency (or EPA if the state isn’t authorized to issue permits) to confirm that your facility requires a permit and determine what type of NPDES permit the state requires you to have (general or individual).
Apply for the relevant NPDES permit through the permitting agency.
- Facilities under general permits typically submit a Notice of Intent to the permitting authority.
- Facilities not covered by general permits must apply for NPDES individual permits. Because these are developed for specific sites, the permitting process takes longer (possibly more than six months).

Key to remember: Facilities must obtain a general or individual NPDES permit before directly discharging industrial wastewater into waters of the United States.

2024-08-02T05:00:00Z

Hazardous waste export manifests join e-Manifest system

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.

What are the changes?

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:

Expands the international shipment data elements on the manifest form,
Updates the requirements for the document that tracks hazardous waste movement to better connect the manifest information with the movement document information (assisting with the integration of EPA’s Waste Import Export Tracking System with RCRAInfo), and
Requires the last transporter (which transports hazardous waste export shipments out of the U.S.) to send a signed copy of the manifest and continuation sheet to the exporter instead of the generator.

Manifest-related reports

The final rule integrates other reports into the e-Manifest system, including:

Discrepancy Reports for mismatches in the amount of waste,
Exception Reports for shipment problems, and
Unmanifested Waste Reports for waste found without proper tracking documents.

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.

What are the compliance deadlines?

The final Third Rule takes effect on January 22, 2025. However, these requirements don’t take effect until December 1, 2025:

Exporters must submit hazardous waste export manifests to the e-Manifest system and pay the user fee.
Entities must submit Discrepancy, Exception, and Unmanifested Waste Reports to the e-Manifest system.
The last transporters must provide the export manifests and continuation sheets to the exporters.

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.

wholesale distribution manufacturing (31/food/textiles)waste management personal services entertainment construction mining warehousing manufacturing (32/non-durable)manufacturing (33/durable)real estate public administration retail transportation professional services utilities repair services healthcare oily rags hhc ehss tags continuous releases packages very small quantity generators tsdfs corrosivity emergency coordinators national response center cercla hazardous waste generators ncp e-manifests double walled tanks discharges waste storage conditionally excluded waste leakages vsqgs waste codes hazardous secondary materials bulk packagings garbage recycling trash integrated contingency plans large quantity generators form 8700-12 extinguisher one plan emergency releases biennial reporting receiving facilities containment systems fires industrial furnaces waste burning sumps municipal solid waste electronic manifests blasting agents toxic chemicals reportable quantities epa id numbers aerosol cans section 304 reporting residues ground water solvent waste placards ground-water highly hazardous chemical landfilling emergency equipment exception reporting liability solvent contaminated wipes portable fire extinguishers chemicals cesqgs spill reporting characteristic waste shop rags waste burners lqgs hmt listed waste waste disposal rcra precious metals waste transportation hazardous materials accumulation non-acute waste eri waste treatment hmr p codes cercla hazardous substances chemical spills reactivity waste shippers extremely hazardous substances toxicity hazardous chemicals hazwaste chemical releases acute waste ignitability chemical accidents financial coverage conditionally exempt non-bulk packagings u codes labels used batteries spill kits tsca icps pharmaceutical waste treatment storage and disposal overfills financial assurance post-closure small quantity generators emergency response information section 103 reporting national contingency plan national response system crts toxic substances interim status rqs munitions epcra waste shipping boilers cathode ray tubes chemical lists episodic generation sqgs resource conservation and recovery sms essential sms advanced sms trial enterprise sms premium sms trial r40cfr265 r40cfr261 r40cfr262 r40cfr761 r40cfr271 r40cfr264 r40cfr267 r40cfr260 r40cfr263 r40cfr270 40 cfr 265 40 cfr 261 40 cfr 262 40 cfr 761 40 cfr 271 40 cfr 264 40 cfr 267 40 cfr 260 40 cfr 263 40 cfr 270 40 cfr 265 interim status standards for owners and operators of hazardous waste treatment, storage, and disposal facilities 40 cfr 261 identification and listing of hazardous waste 40 cfr 262 standards applicable to generators of hazardous waste 40 cfr 761 polychlorinated biphenyls (pcbs) manufacturing, processing, distribution in commerce, and use prohibitions 40 cfr 271 requirements for authorization of state hazardous waste programs 40 cfr 264 standards for owners and operators of hazardous waste treatment, storage, and disposal facilities 40 cfr 267 standards for owners and operators of hazardous waste facilities operating under a standardized permit 40 cfr 260 hazardous waste management system: general 40 cfr 263 standards applicable to transporters of hazardous waste 40 cfr 270 epa administered permit programs: the hazardous waste permit program

2021-12-27T06:00:00Z

86 FR 73207 National Perchloroethylene Air Emission Standards for Dry Cleaning Facilities Technology Review

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:

Federal eRulemaking Portal: https://www.regulations.gov/ (our preferred method). Follow the online instructions for submitting comments.
Email: a-and-r-docket@epa.gov. Include Docket ID No. EPA-HQ-OAR-2005-0155 in the subject line of the message.
Fax: (202) 566-9744. Attention Docket ID No. EPA-HQ-OAR-2005-0155.
Mail: U.S. Environmental Protection Agency, EPA Docket Center, Docket ID No. EPA-HQ-OAR-2005-0155, Mail Code 28221T, 1200 Pennsylvania Avenue NW, Washington, DC 20460.
Hand/Courier Delivery: EPA Docket Center, WJC West Building, Room 3334, 1301 Constitution Avenue NW, Washington, DC 20004. The Docket Center's hours of operation are 8:30 a.m. to 4:30 p.m., Monday through Friday (except Federal holidays).

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

Commercial Dry Cleaning [Perchloroethylene]—Transfer Machines
Industrial Dry Cleaning [Perchloroethylene]—Transfer Machines
Industrial Dry Cleaning [Perchloroethylene]—Dry-to-Dry Machines

Area Source Categories

Commercial Dry Cleaning [Perchloroethylene]—Transfer Machines
Commercial Dry Cleaning [Perchloroethylene]—Dry-to-Dry Machines

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).

Operate with a refrigerated condenser and carbon adsorber process controls.
Use an enhanced leak detection and repair (LDAR) program to detect PCE leaks from the machines ( i.e., PCE gas analyzer operated according to EPA Method 21), repair the leaks, and maintain records.

The PCE Dry Cleaning NESHAP requires existing major source PCE dry cleaners operating dry-to-dry machines to:

Operate with a refrigerated condenser or a carbon adsorber as process control.
Use an enhanced LDAR program to detect PCE leaks from the machines ( i.e., PCE gas analyzer operated according to EPA Method 21), repair the leaks, and maintain records.

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:

Use a halogenated hydrocarbon detector or PCE gas analyzer monthly to detect PCE leaks, repair the leaks, and maintain records.

New area source PCE dry cleaners operating dry-to-dry machines must:

Operate with a refrigerated condenser and carbon adsorber process controls.
Use a halogenated hydrocarbon detector or PCE gas analyzer to detect PCE leaks, repair the leaks, and maintain records.

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”:

Any add-on control technology or other equipment that was not identified and considered during development of the original MACT and GACT standards;
Any improvements in add-on control technology or other equipment (that were identified and considered during development of the original MACT and GACT standards) that could result in additional emissions reduction;
Any work practice or operational procedure that was not identified or considered during development of the original MACT and GACT standards;
Any process change or pollution prevention alternative that could be broadly applied to the industry and that was not identified or considered during development of the original MACT and GACT standards; and
Any significant changes in the cost (including cost effectiveness) of applying controls (including controls the EPA considered during the development of the original MACT and GACT standards).

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).

Table 1—Proximity Demographic Assessment Results
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
	Nationwide	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

CAA Clean Air Act SMS Advanced SMS Trial SMS Trial Enterprise SMS Premium SMS Essential r40CFR63.324 r40CFR63.325 r40CFR63.322 40 CFR 63.324 40 CFR 63.325 40 CFR 63.322 40 CFR 63.324 Reporting and recordkeeping requirements.40 CFR 63.325 Determination of equivalent emission control technology.40 CFR 63.322 Standards.

2024-07-31T05:00:00Z

What’s new in hazardous waste management?

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.

Why these changes matter

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.

What does this mean for you?

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.

Compliance dates

This rule is effective on January 22, 2025.

However, the following requirements don’t go into effect until December 1, 2025:

Collection of hazardous waste export manifests in the e-Manifest system,
Use of electronic manifests for hazardous waste export shipments, and
Use of electronic Exception, Discrepancy, and Unmanifested Waste Reports.

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.

2024-07-26T05:00:00Z

EPA reconsidering application exclusion zone with key amendments

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.

Proposed change #1: The area where the AEZ applies

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.

Proposed change #2: The exception to application suspension requirements for property easements

Proposed change #3: The distances from the application equipment in which entry restrictions associated with ongoing pesticide applications apply

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.

Potentially affected entities

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:

111000 – Agricultural establishments
111421 – Nursery and tree production
113110 – Timber tract operations
113210 – Forest nurseries and gathering of forest products
11511, 115112, and 115114 – Farmworkers
115112 – Pesticide handling on farms
115115 – Farm labor contractors and crew leaders
115310 – Pesticide handling in forestry
325320 – Pesticide manufacturers
813311, 813312, and 813319 – Farmworker support organizations
813930 – Farmworker labor organizations
115112, 541690, and 541712 – Crop advisors

Regulatory history in brief

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.

Most Recent Highlights In Human Resources

2024-07-18T05:00:00Z

Nonattainment NSR permits: Preventing bad air days

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.

What are attainment and nonattainment areas?

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.

What’s the NSR program?

Typically issued at the state level, NSR permits require major sources to install and maintain pollution control equipment. They also establish:

What construction is allowed,
Emissions limits, and
Applicable operating requirements.

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:

Prevention of Significant Deterioration permits (issued in attainment areas),
Nonattainment NSR permits, and
Minor source permits.

Let’s zoom in on the nonattainment NSR permit.

What does the nonattainment NSR permit require?

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:

The most stringent emission limitation in the SIP for your facility’s class or source category, or
The most stringent emission limitation achieved by facilities in the same class or source category.

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.

Where do I start?

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.

Check the EPA Green Book, which provides nonattainment statuses across the U.S. by criteria pollutant. Make sure to check the statuses for all criteria pollutants!
Confirm any nonattainment areas with the state or local environmental agency for each criteria pollutant.
Evaluate the nonattainment NSR permitting requirements in the SIP.

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.

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2024-07-12T05:00:00Z

Good Neighbor Plan on ice as legal battle heats up

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.

The Good Neighbor Plan and the fuss about it

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.

Why Ohio (and others) said no

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.

The court's decision: A stay of execution

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.

The road ahead: Cleaner air or regulatory hurdles?

So, what does this mean for factories, power plants, and other facilities that release air emissions?

Temporary relief: Facilities located in the states targeted by the GNP will see a temporary reprieve from the stricter emission regulations of EPA’s plan.
Uncertainty reigns: The legal battle isn’t over. Lower courts will decide the fate of the plan, and it could still be implemented, potentially with modifications.
The Clean Air Act remains: Don’t forget, the Clean Air Act, the main federal law regulating air pollution, remains in effect. Facilities must still comply with existing regulations set by EPA and their state governments.

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.

2024-07-09T05:00:00Z

EPA’s Spring 2024 regulatory agenda now available

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:

Establishing a management program for hydrofluorocarbons (HFCs) that implements emissions-reduction requirements for certain pieces of equipment using refrigerants containing HFCs and their substitutes, with an expected publishing date for the final rule in August 2024;
Finalizing a rule in October 2024 to have nearly all water systems replace lead service lines within 10 years, reduce the lead action level, and improve tap sampling;
Implementing a Waste Emissions Charge program that requires oil and natural gas facilities to pay an annual charge for exceeding methane and intensity thresholds, with an expected publishing date for the final rule in December 2024;
Proposing a rule in March 2025 that establishes the Renewable Fuel Standards beginning in 2026 for cellulosic biofuel, biomass-based diesel, advanced biofuel, and total renewable fuel; and
Publishing a proposed rule in April 2025 that, if finalized, reinstates reporting requirements for animal waste air emissions at farms under the Emergency Planning and Community Right-to-Know Act (EPCRA).

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

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2024-07-05T05:00:00Z

Expert Insights: Sharpen your skills for effective environmental investigations

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.

Preparing to respond

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.

Conducting the investigation

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.

Recordkeeping

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.

2024-06-28T05:00:00Z

Ready, set, adapt! EPA unveils new climate adaptation plan

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.

What does the plan do?

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.

How does this affect industrial facilities?

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.

Most Popular Highlights In Environmental

2023-06-16T05:00:00Z

Are you meeting OSHA’s requirements for CPR and AEDs in the workplace?

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.

The importance of CPR and early defibrillation

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.

Signs and symptoms of cardiac compromise

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:

Chest pain accompanied by a crushing or squeezing sensation,
Pain that radiates to the jaw or arm,
Irregular pulse and/or abnormal blood pressure,
Shortness of breath,
Cool and sweaty skin,
Nausea and vomiting, and
Anxiety or feeling of impending doom.

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 requirements regarding CPR

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:

1910.146 Permit-required Confined Spaces
1910.266 Appendix B: Logging Operations – First Aid and CPR Training
1910.269 Electric Power Generation, Transmission, and Distribution
1910.410 Qualifications of Dive Team and
1926.950 Construction Subpart V, Power Transmission and Distribution

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.

OSHA requirements regarding AEDs — you might need a prescription

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.

Training requirements

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.

Keys to Remember

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.

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2023-04-06T05:00:00Z

Giving truck drivers rights to your restrooms

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.

Proposed legislation

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.

Your restroom availability affects their health

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.

Keys to remember

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.

2023-05-24T05:00:00Z

The ultimate guide to building your spill kit

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:

Oil Spills - These spill kits are designed for the absorption of hydrocarbons. They repel water and are often used for spill response and containment in waterbodies. They are generally designed for both indoor and outdoor use.
Hazardous Chemicals - These kits are designed to handle aggressive chemicals that may or may not be oil-based. They can also be used to clean up hydrocarbon spills.
Universal – These kits are designed to have wide applicability. Although they may be used for water-based spills, typically they are not well suited for containment in waterbodies or with aggressive chemicals.
Specialty – These kits are designed for specific spills such as battery acids, biohazards, mercury, etc. They will have special absorbents based on the intended target. For example, a battery acid spill kit will likely contain absorbent with a chemical neutralizer.

What to include in the spill kit?

When considering the contents of your spill kit you should think about the following:

Type - Is it an oil spill, hazardous material, or biohazard? Consider the state of the material and the rate at which it may spread.
Size - Ensure that you have a handle on the largest volume of product that could be released at any given time.
Location – Assess potential areas and operations at your facility where a spill might occur.

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.

2021-10-15T05:00:00Z

Aerosol spray paint VOC standards

EPA published a draft rule proposing amendments to the National Volatile Organic Compound (VOC) Emission Standards for Aerosol Coatings. This part of the Clean Air Act (CAA) establishes reactivity-based emission standards for the aerosol coatings category, commonly known as aerosol spray paints. The current rulemaking comments close this month, on or before November 16, 2021. After that date EPA will review all comments received, make any adjustments necessary to the draft rule, and then publish a final rule.

EPA is proposing to make multiple changes to Tables 1 and 2 in subpart E of part 59. In Table 1 the draft rule combines the ‘‘enamel,’’ ‘‘lacquer,’’ and ‘‘clear or metallic’’ coatings into one category of ‘‘Hobby/Model/Craft Coatings.’’ The Hobby/Model/Craft category limit will be set equal to 1.6 g O3/g VOC. The ‘‘clear’’ and ‘‘pigmented’’ subcategories will be combined under the ‘‘Shellac Sealers’’ category, with a limit set at 1.00 g O3/g VOC. EPA also is proposing to add six new specialty coating categories and corresponding limits for those categories:

Electrical/Electronic/Conformal Coatings, with a category limit set equal to 2.00 g O3/g VOC;
Flexible Coatings, with a limit equal to 1.60 g O3/g VOC;
Mold Release Coatings, with a limit equal to 1.10 g O3/g VOC;
Rust Converter, with a limit equal to 1.10 g O3/g VOC;
Two Component Coating, with a limit equal to 1.20 g O3/g VOC; and
Uniform Finish Coating, with a limit equal to 1.30 g O3/g VOC.

EPA is proposing to amend Tables 2A, 2B, and 2C by adding new compounds and reactivity factors (RFs) and updating existing reactivity values.

In this rulemaking, EPA is proposing to eliminate part of the VOC definition that exempts de minimis contributions to VOC emissions. Specifically, it would retain part (a), where compounds that comprise less than 0.1 percent of the product weight are excluded from the product’s mass-weighted reactivity, and eliminate (b), the exclusion of low reactivity compounds that comprise more than 0.1 percent but less than 7.3 percent of the product weight. These two actions, in combination, would make EPA’s national regulation consistent with the aerosol coatings regulation in California.

Last, continuing with efforts that extend beyond this proposed rule, EPA has included revisions to the existing aerosol coatings rule that would require regulated entities to submit electronic copies of required notifications and reports via EPA’s Central Data Exchange (CDX), using the Compliance and Emissions Data Reporting Interface (CEDRI). This would eliminate the current hard copy submission requirements for Temporary Variances, Initial Notification, Change to Information in Initial Notification, Response to Written Notification, Exemption Claim Initial Notification, Exemption Claim Annual Report, Notice of Certifying Entity to Maintain Records, Notice Rescinding Certification, and Triennial Reports.

Key to remember: EPA draft updates to VOC Emission Standards for Aerosol Coatings propose the combination of coating categories, remove de minimis exemptions, and switch to e-reporting.

2023-09-14T05:00:00Z

Used hazardous waste drums posing BIG headaches, says EPA

Should EPA add more teeth to the hazardous waste regulations for “used containers,” like metal or plastic drums that once held hazardous waste? The regulations could impact the generation, transportation, management, and reconditioning of the containers. You have until November 22 to tell the agency what you think!

EPA has an “empty-container provision” where used hazardous waste containers must be empty before they can be sent to non-permitted facilities. Yet, these drum reconditioner facilities are actually getting containers that are not “empty” according to the Resource Conservation and Recovery Act (RCRA). In other words, they are not “RCRA-empty.”

Learn more, by clicking our Empty Containers (RCRA-Empty) ezExplanation and our FAQ that asks, “Is my empty drum hazardous waste?”

Collectively, residues left in containers create a significant risk, explains the EPA. This is especially the case when the reconditioner facilities do not have a hazardous waste permit. Damages include fire, explosion, leaks/spills, environmental contamination, and injuries/illnesses.

EPA’s Federal Register notice

EPA published a pre-proposal on August 11 asking for information as the agency considers a future rulemaking. On September 5, the agency issued another notice extending the comment period to November 22. Stakeholders include:

Used drum generators,
Drum reconditioning facilities,
Communities near drum reconditioning facilities,
Container transporters,
Tanker car and railcar cleaning facilities,
Chemical manufacturers,
Scrap yards and landfills,
Waste generators,
Industrial facilities, and
Environmental groups.

Through the pre-proposal, EPA is:

Evaluating the generation, transportation, and management of used containers;
Looking for information on state compliance assistance and technologies for drum handling or cleaning; and
Trying to figure out if regulatory or non-regulatory actions could lessen the risks involved in the used container lifecycle.

EPA admits that the reconditioning of used containers is a vital part of the waste management industry. It reduces waste overall, but not without serious, unintended consequences, argues the agency.

What regulatory options is EPA considering?

If you send used drums or containers to a drum reconditioner, EPA refers to you as a “used drum generator.” For used drum generators, as well as transporters, the agency is considering:

Reducing the one-inch regulatory limit for defining RCRA-empty containers;
Requiring rinsing for all containers before they would be deemed RCRA-empty;
Requiring empty drums to meet structural integrity requirements before shipment;
Requiring used drum generators to ensure all waste has been removed from containers;
Requiring used drum generators to track shipments of empty drums; and
Requiring drum labeling or documentation of the hazard posed by drum residues.

The agency also suggests it could remove the empty-container provision. If that happens, it would impose full RCRA Subtitle C requirements on residues in drums. This change would be applied from the point the drums are generated to the point that they no longer contain any residue.

The pre-proposal goes on to suggest 13 regulatory actions for drum reconditioners and drum “end-of-life” management facilities like scrap yards and landfills. These actions cover things like waste analysis, inspections, inventories, and financial assurance. Permitting, pre-treatment, wastewater management, and contingency planning provisions are also possible.

What non-regulatory options is EPA considering?

In addition to potential regulatory changes, EPA is thinking about:

Hiking compliance assistance and enforcement efforts; and
Issuing voluntary standards, best practices, and standard operating procedures.

Pre-proposal mentions tanker car and railcar cleaning facilities

EPA recognizes that “transportation equipment cleaning facilities” (TECFs) have similar issues to drum reconditioners. The agency warns that actions stemming from the pre-proposal could also apply to these facilities. The agency is interested in comments on environmental problems with TECFs.

Key to remember

EPA is looking at regulatory and non-regulatory options to deal with used hazardous waste containers. The agency seeks comment by November 22.

2023-06-07T05:00:00Z

EPA: Confidential Business Information Claims under the Toxic Substances Control Act (TSCA)

SUMMARY: The Environmental Protection Agency (EPA) is finalizing new and amended requirements concerning the assertion and treatment of confidential business information (CBI) claims for information reported to or otherwise obtained by EPA under the Toxic Substances Control Act (TSCA). Amendments to TSCA in 2016 included many new provisions concerning the assertion, Agency review, and treatment of confidentiality claims. This document finalizes procedures for submitting such claims in TSCA submissions. It addresses issues such as substantiation requirements, exemptions, electronic reporting enhancements (including expanding electronic reporting requirements), maintenance or withdrawal of confidentiality claims, and provisions in current rules that are inconsistent with amended TSCA. The rule also addresses EPA procedures for reviewing and communicating with TSCA submitters about confidentiality claims.

DATES: This final rule is effective on August 7, 2023, published in the Federal Register June 7, 2023, page 37155.

View final rule.

§2.306 Special rules governing certain information obtained under the Toxic Substances Control Act.
Entire section	Revised	View text
§702.37 Submission of manufacturer requests for risk evaluations.
(d)	Revised	View text
Part 703 – Confidentiality Claims
Entire part	Added	View text
§704.7 Confidential business information claims.
Entire section	Revised	View text
§707.63 Definitions.
Entire section	Revised	View text
§707.65 Submission to the agency.
Entire section	Revised	View text
§707.67 Contents of notice.
(a)	Revised	View text
§707.75 Confidentiality.
(d)	Revised	View text
§716.55 Confidentiality claims.
Entire section	Revised	View text
§717.17 Inspection and reporting requirements.
(c)	Revised	View text
§717.19 Confidentiality.
Entire section	Revised	View text
§720.80 General provisions.
Entire section	Revised	View text
§720.85 Chemical identity.
Entire section	Removed	View text
§720.90 Data from health and safety studies.
Entire section	Removed	View text
§720.95 Public file.
Entire section	Removed	View text
§720.102 Notice of commencement of manufacture or import.
(c)(2)	Revised	View text
(e), (f)	Added	View text
§723.50 Chemical substances manufactured in quantities of 10,000 kilograms or less per year, and chemical substances with low environmental releases and human exposures
(l)	Revised	View text
§723.250 Polymers.
(f)	Revised	View text
(n)	Revised	View text
§725.80 General provisions for confidentiality claims.
Entire section	Revised	View text
§725.85 Microorganism identity.
Entire section	Removed	View text
§725.92 Data from health and safety studies of microorganisms.
Entire section	Removed	View text
§725.94 Substantiation requirements.
Entire section	Removed	View text
§725.95 Public file.
Entire section	Revised	View text
§725.190 Notice of commencement of manufacture or import.
(c)	Revised	View text
(e), (f)	Added	View text
§790.7 Confidentiality.
Entire section	Revised	View text

New Text

§2.306 Special rules governing certain information obtained under the Toxic Substances Control Act.

(a) Definitions. For the purposes of this section:

Act means the Toxic Substances Control Act, 15 U.S.C. 2601 et seq.

Chemical substance has the meaning given it in section 3(2) of the Act, 15 U.S.C. 2602(2).

EPA Legal Office means the EPA Office of General Counsel and any EPA office over which the EPA General Counsel exercises supervisory authority.

Proceeding means any rulemaking, adjudication, or licensing conducted by EPA under the Act or under regulations which implement the Act, except for determinations under this subpart.

(b) Applicability. This section applies as set forth in 40 CFR 703.1.

(c) Basic rules that apply without change. Sections 2.210, 2.211, 2.212, 2.214, and 2.215 of this part apply without change to information to which this section applies. Unless otherwise specified in this section, the provisions in §§2.201 through 2.205 and 2.208 do not apply to information subject to this section. Instead, the provisions of 40 CFR part 703 provide the requirements and procedures relevant to confidentiality determinations for information submitted to EPA under the Act.

(d) Disclosure in special circumstances. (1) EPA intends to make disclosures pursuant to a request under section 14(d)(4), (5), or (6) of the Act for information to which this section applies in accordance with the requirements of the Act and any applicable EPA guidance required by section 14(c)(4)(B) of the Act.

(2) Section 2.209 applies to information to which this section applies, except that:

(i) The notification specified in §2.209(b)(2) is 15 business days.

(ii) The following two additional provisions apply to §2.209(c):

(A) The official purpose for which the information is needed must be in connection with the agency's duties under any law for protection of health or the environment or for specific law enforcement purposes; and

(B) EPA notifies the other agency that the information was acquired under authority of the Act and that any knowing disclosure of the information may subject the officers and employees of the other agency to the penalties in section 14(h) of the Act (15 U.S.C. 2613(h)).

(e) Disclosure of information relevant in a proceeding. (1) Under section 14(d)(7) of the Act (15 U.S.C. 2613(d)(7)), any information to which this section applies may be disclosed by EPA when the information is relevant in a proceeding under the Act, notwithstanding the fact that the information otherwise might be entitled to confidential treatment under this subpart. However, any such disclosure shall be made in a manner that preserves the confidentiality of the information to the extent practicable without impairing the proceeding. Disclosure of information to which this section applies because of its relevance in a proceeding shall be made only in accordance with this paragraph (e).

(2) The provisions of §2.301(g)(2) through (4) apply to disclosures under this paragraph (e).

(f) Disclosure of information to contractors and subcontractors. (1) Under section 14(d)(2) of the Act (15 U.S.C. 2613(d)(2)), any information to which this section applies shall be disclosed by EPA to a contractor or subcontractor of the United States if, in the opinion of the Administrator, the disclosure is necessary for the satisfactory performance of their work in connection with the Act, notwithstanding the fact that the information otherwise might be entitled to confidential treatment under this subpart. Subject to the limitations in this paragraph (f), information to which this section applies may be disclosed:

(i) To a contractor or subcontractor with EPA, if the EPA program office managing the contract first determines in writing that such disclosure is necessary for the satisfactory performance by the contractor or subcontractor of the contract or subcontract; or

(ii) To a contractor or subcontractor with an agency other than EPA, if the EPA program office which provides the information to that agency, contractor, or subcontractor first determines in writing, in consultation with the General Counsel, that such disclosure is necessary for the satisfactory performance by the contractor or subcontractor of the contract or subcontract.

(2) The provisions of §2.301(h)(2)(ii) through (iv) apply to disclosures under paragraph this (f).

(3) At the time any information is furnished to a contractor or subcontractor under this paragraph (f), the EPA office furnishing the information to the contractor or subcontractor shall notify the contractor or subcontractor that the information was acquired under authority of the Act and that any knowing disclosure of the information may subject the contractor or subcontractor and its employees to the penalties in section 14(h) of the Act (15 U.S.C. 2613(h)).

(g) Disclosure of information when necessary to protect health or the environment against an unreasonable risk of injury. (1) Under section 14(d)(3) of the Act (15 U.S.C 2613(d)(3)), any information to which this section applies shall be disclosed by EPA if the Administrator determines that disclosure is necessary to protect health or the environment against an unreasonable risk of injury to health or the environment, without consideration of costs, or other non-risk factors, including an unreasonable risk to a potentially exposed or susceptible subpopulation identified as relevant by the Administrator under the conditions of use. However, any disclosure shall be made in a manner that preserves the confidentiality of the information to the extent not inconsistent with protecting health or the environment against the unreasonable risk of injury. Disclosure of information to which this section applies because of the need to protect health or the environment against an unreasonable risk of injury shall be made only in accordance with this paragraph (g).

(2) If any EPA office determines that there is an unreasonable risk of injury to health or the environment and that to protect health or the environment against the unreasonable risk of injury it is necessary to disclose information to which this section applies that otherwise might be entitled to confidential treatment under this subpart, the EPA office shall notify the EPA Legal Office in writing of the nature of the unreasonable risk of injury, the extent of the disclosure proposed, how the proposed disclosure will serve to protect health or the environment against the unreasonable risk of injury, and the proposed date of disclosure. Such notification shall be made as soon as practicable after discovery of the unreasonable risk of injury. If the EPA office determines that the risk of injury is so imminent that it is impracticable to furnish written notification to the EPA Legal Office, the EPA office shall notify the EPA Legal Office orally.

(3) Upon receipt of notification under paragraph (g)(2) of this section, the EPA Legal Office shall make a determination in writing whether disclosure of information to which this section applies that otherwise might be entitled to confidential treatment is necessary to protect health or the environment against an unreasonable risk of injury. The EPA Legal Office shall also determine the extent of disclosure necessary to protect against the unreasonable risk of injury as well as when the disclosure must be made to protect against the unreasonable risk of injury.

(4) If the EPA Legal Office determines that disclosure of information to which this section applies that otherwise might be entitled to confidential treatment is necessary to protect health or the environment against an unreasonable risk of injury, the EPA Legal Office shall furnish notice to each affected business of the contemplated disclosure and of the Legal Office's determination. Such notice shall be made in writing, via either electronic notice as described in 40 CFR 703.5(h) or by certified mail, return receipt requested, at least 15 business days before the disclosure is to be made. The notice shall state the date upon which disclosure will be made. However, if the EPA Legal Office determines that disclosure of the information is necessary to protect against an imminent and substantial harm to health or the environment, no prior notification is necessary.

§702.37 Submission of manufacturer requests for risk evaluations.

* * * *

(d) Confidential business information. Claims of confidentiality must be made in accordance with the procedures described in 40 CFR part 703.

§704.7 Confidential business information claims.

Claims of confidentiality must be made in accordance with the procedures described in 40 CFR part 703.

§707.63 Definitions.

The definitions set forth in the Toxic Substances Control Act, section 3, apply for this part. In addition, the following abbreviations and definitions are provided for purposes of this rule:

CDX or Central Data Exchange means EPA's centralized electronic document receiving system, or its successor system.

EPA

means the Environmental Protection Agency.

Exporter

means the person who, as the principal party in interest in the export transaction, has the power and responsibility for determining and controlling the sending of the chemical substance or mixture to a destination out of the customs territory of the United States.

Regulated chemical

means any chemical substance or mixture for which export notice is required under §707.60.

TSCA

means the Toxic Substances Control Act.

§707.65 Submission to the agency.

(a) For each action under TSCA triggering export notification, exporters must notify EPA of their export or intended export of each subject chemical substance or mixture for which export notice is required under §707.60 in accordance with the following:

(1)(i) The export notice must be for the first export or intended export by an exporter to a particular country in a calendar year when the chemical substance or mixture is the subject of an order issued, an action that is pending, or relief that has been granted under TSCA section 5(f), a rule that has been proposed or promulgated under TSCA section 6, or an action that is pending or relief that has been granted under TSCA section 7.

(ii) The export notice must only be for the first export or intended export by an exporter to a particular country when the chemical substance or mixture is the subject of an order issued, an action that is pending, or relief that has been granted under TSCA section 5(e), a rule that has been proposed or promulgated under TSCA section 5(a)(2), or when the submission of data is required under TSCA section 4 or 5(b). Under this paragraph, notice of export to a particular country is not required if an exporter previously submitted to EPA a notice of export to that country prior to January 16, 2007.

(2) The export notice must be submitted to EPA within seven days of forming the intent to export or on the date of export, whichever is earlier. A notice of intent to export must be based on a definite contractual obligation, or an equivalent intra-company agreement, to export the regulated chemical.

(b) If the EPA action that prompts the notice is a proposed rule, the requirement to submit export notices to EPA shall begin thirty days after publication of the action in the Federal Register .

(c) Export notices must be submitted via CDX, using the TSCA section 12(b) Export Notification Application or its successor.

§707.67 Contents of notice.

(a) The name of the regulated chemical as it appears in the TSCA section 4, 5, 6, and/or 7 action. For substances on the confidential portion of the TSCA Inventory, the substance must be identified by generic name and accession number, or by any other non-confidential identifier under which it is listed on the TSCA section 12(b) reporting list maintained by EPA and available in the TSCA section 12(b) Export Notification Application described in §707.65(c). If a category is regulated, the name of the individual regulated chemical within that category, as well as the category, must be given. The name must be that which appears in the TSCA Inventory if the chemical appears there.

§707.75 Confidentiality.

* * * *

(d) Claims of confidentiality must be made in accordance with the procedures described in 40 CFR part 703.

§716.55 Confidentiality claims.

Claims of confidentiality must be made in accordance with the procedures described in 40 CFR part 703.

§717.17 Inspection and reporting requirements.

* * * *

(c) How to Report. When required to report, firms must submit copies of records via CDX https://cdx.epa.gov/ using the EPA provided electronic reporting application.

§717.19 Confidentiality.

Claims of confidentiality must be made in accordance with the procedures described in 40 CFR part 703.

§720.80 General provisions.

Claims of confidentiality must be made in accordance with the procedures described in 40 CFR part 703.

§720.95 Public file.

All information submitted with a notice, including any health and safety study and other supporting documentation, will become part of the public file for that notice, unless such materials are claimed confidential in accordance with procedures in 40 CFR 703.5. In addition, EPA may add materials to the public file, subject to subpart E of this part. Publicly available materials are available at the docket addresses in §700.17(b)(1) and (2) of this subchapter and on EPA's website.

§720.102 Notice of commencement of manufacture or import.

* * * *

(c)(2) If the submitter claims any information on the form as confidential, the claim must be asserted and substantiated in accordance with the requirements described in 40 CFR part 703 and must be submitted via EPA Form 7710–56. If the submitter wants the chemical identity to be listed on the confidential portion of the TSCA Inventory, the chemical identity must be claimed as confidential and the submitter must also follow the certification, substantiation, and generic name requirements described 40 CFR part 703 and paragraphs (e) and (f) of this section. Otherwise, EPA will list the specific chemical identity on the public TSCA Inventory. Submitters who did not claim the chemical identity, submitter identity, or other information to be confidential in the PMN cannot claim this information as confidential in the notice of commencement.

§723.50 Chemical substances manufactured in quantities of 10,000 kilograms or less per year, and chemical substances with low environmental releases and human exposures

* * * *

(l) Confidentiality. Claims of confidentiality must be made in accordance with the procedures described in 40 CFR part 703.

§723.250 Polymers.

* * * *

(f) Exemption report for polymers manufactured under the terms of this section. For substances exempt under paragraphs (e)(1) through (3) of this section a report of manufacture or import must be submitted by January 31 of the year subsequent to initial manufacture. The report and accompanying claims must be submitted via CDX ( https://cdx.epa.gov/ ), using the TSCA Section 5 Notices and Supports—ePMN application. See §720.40(a)(2)(ii) of this subchapter for information on how to access e-PMN software. The notice must include:

* * * * *

(n) Confidentiality. Claims of confidentiality must be made in accordance with the procedures described in 40 CFR part 703.

§725.80 General provisions for confidentiality claims.

Claims of confidentiality must be made in accordance with the procedures described in 40 CFR part 703, except as modified in this paragraph. In general, references to “chemical” or “chemical identity” in part 703 are equivalent to “microorganism” or “microorganism identity” for the purposes of this part.

(a) In place of §703.5(b)(3)(v) of this subchapter, the following question must be answered: Has EPA, another Federal agency, or court made any confidentiality determination regarding information associated with this microorganism? If yes, please provide the circumstances associated with the prior determination, whether the information was found to be entitled to confidential treatment, the entity that made the decision, and the date of the determination.

(b) In place of §703.5(b)(4) of this subchapter, the following questions apply:

(1) Has the identity of the microorganism been kept confidential to the extent that competitors do not know it is being manufactured or imported into US commerce? If not, explain why the microorganism identity should still be afforded confidential status (e.g., the microorganism is publicly known only as being distributed in commerce for research and development purposes, but no other information about the current commercial distribution of the microorganism in the United States is publicly available).

(2) Does the microorganism leave the site of production or testing in a form which is accessible to the public or to competitors? If yes, please explain what measures have been taken to guard against the discovery of its identity. Further, what is the cost to a competitor, in time and money, to develop appropriate use conditions? What factors facilitate or impede product analysis?

§725.95 Public file.

All information submitted, including any health and safety study of a microorganism and other supporting documentation, will become part of the public file for that submission, unless such materials are claimed as confidential in accordance with this section. In addition, EPA may add materials to the public file, subject to subpart C of this part. Publicly available materials are available at the docket addresses in §700.17(b)(1) and (2) of this subchapter and on EPA's website.

§725.190 Notice of commencement of manufacture or import.

* * * *

(c) Information to be reported. The NOC must contain the following information: Specific microorganism identity, MCAN number, and the date when manufacture or import commences. If the person claims any information on the form as confidential, the claim must be asserted and substantiated in accordance with the requirements described in part 703 of this subchapter and §725.80, as indicated in EPA Form 7710–56. If the submitter wants the microorganism identity to be listed on the confidential portion of the TSCA Inventory, the microorganism identity must be claimed as confidential and also follow the certification, substantiation, and generic name requirements described in part 703 of this subchapter and paragraphs (e) and (f) of this section.

§790.7 Confidentiality.

Claims of confidentiality must be made in accordance with the procedures described in 40 CFR part 703.

Chemical Lists Highly Hazardous Chemical CERCLA Hazardous Substances Chemicals Form R Extremely Hazardous Substances TSCA Hazardous Chemicals TRI Reporting EHSs Form A Section 313 Reporting Toxic Chemicals Toxic Release Inventory Reporting Toxic Chemical Release Reporting Toxic Substances HHC SMS Trial Enterprise SMS Advanced SMS Premium SMS Essential SMS Trial r40CFR707 r40CFR717 r40CFR790 r40CFR704 r40CFR720 r40CFR2 r40CFR702 r40CFR725 r40CFR723 r40CFR716 40 CFR 707 40 CFR 717 40 CFR 790 40 CFR 704 40 CFR 720 40 CFR 2 40 CFR 702 40 CFR 725 40 CFR 723 40 CFR 703 40 CFR 716 40 CFR 707 Chemical imports and exports 40 CFR 717 Records and reports of allegations that chemical substances cause significant adverse reactions to health or the environment 40 CFR 790 Procedures governing testing consent agreements and test rules 40 CFR 704 Reporting and recordkeeping requirements 40 CFR 720 Premanufacture notification 40 CFR 2 nothing 40 CFR 702 General practices and procedures 40 CFR 725 Reporting requirements and review processes for microorganisms 40 CFR 723 Premanufacture notification exemptions 40 CFR 716 Health and safety data reporting

Most Popular Highlights In Transportation

2022-08-29T05:00:00Z

The 150 air-mile short-haul exemptions: Widely used and widely misused

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.

The basics of logging exemptions

To be able to use this logging exemption in 395.1(e)(1), the driver must:

Stay within 150 air-miles of the work reporting location for the day (draw a 150 air-mile radius circle around the work reporting location for the day — the driver must stay within this circle),
Be back to — and released from — the work reporting location for his/her 8- or 10-hour break within 14 hours, and
Include the starting and ending times for the day and the total hours on duty on the time record for the day.

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.

What if the driver goes too far or works too many hours?

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).

30-minute break exemption

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.

Common myths

Here are some of the common myths and misunderstandings about the 150 air-mile exemption:

The driver must have the time records in the vehicle. Myth. The driver simply needs to explain to an officer during a roadside inspection that he/she does not have logs due to operating under the 150 air-mile exemption and that the required time records are back at the carrier’s office (just telling the officer, “I don’t have any logs” will lead to a violation, so the driver needs to know to provide the full explanation).
The driver must log the previous seven days if he/she had been using this exemption and suddenly can’t. Myth. If the driver cannot use the exemption on one particular day, that is the only day the driver must use a regular log (either paper or electronic).
Passenger-carrying drivers and drivers hauling hazardous materials cannot use this exemption. Myth. There are no restrictions on the use of this exemption, so any commercial driver can use it.
A driver that crosses state lines cannot use this exemption. Myth. As this exemption appears in the Federal Motor Carrier Administration (FMCSA) regulations, it can be used by interstate drivers.
Only drivers that operate out of a “company terminal” can use the 150 air-mile exemption. Myth. As long as the driver makes it back to the work reporting location for the day within the appropriate number of hours, the driver can use the exemption.
Drivers that move from one jobsite to another every few weeks cannot use this exemption. Myth. If a driver that normally uses this exemption switches work reporting locations, the day the driver switches work reporting locations is the only day the driver cannot use the exemption.
Drivers covered by this exemption are also exempt from the driver qualification (licensing and medical cards), driving, and vehicle inspection requirements. Myth. The only rules the driver is exempt from are the logging requirement in 395.8 and the 30-minute break requirement in 395.3.
The driver cannot drive more than 150 miles for the day. Myth. The driver can drive as many miles as he/she wants to or needs to, as long as the driver stays within the 150 air-mile radius circle and gets back to the work reporting location within the appropriate number of hours.
If a 150 air-mile driver gets into a vehicle with an ELD, the driver must use it. Myth. The carrier can have the driver log in and have the driver entered into the system as an “exempt driver,” or the carrier can request that the driver not log into the device and then attach a comment to the unassigned driving time generated by the driver’s movements. The comment would need to explain that the driver using the vehicle was a 150 air-mile driver who submitted a time record. It is up to the carrier to decide which option to use. If stopped for a roadside inspection, the driver will need to be able to explain to the inspector that he/she is an exempt driver using the 150 air-mile exemption, so using the electronic log is not required.

What’s different with the ‘150 air-mile non-CDL property-carrying drivers’

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.

Managing the use

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.

Verifying compliance is important

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!

2022-07-08T05:00:00Z

What does the alphabet soup following 392.2 on a roadside inspection report mean?

One question that comes up when reviewing roadside inspection reports is, “What is the meaning of the letters that follow a violation of 392.2 on a roadside inspection report?”

‘State and local laws’

A violation of 392.2 is a violation of a local or state law, regulation, or ordinance. These must be obeyed due to 392.2, which reads, “Every commercial motor vehicle must be operated in accordance with the laws, ordinances, and regulations of the jurisdiction in which it is being operated.”

The confusion is that there are no paragraphs in 392.2, so there technically should be no letters following that section. However, to inform the driver, carrier, and the Federal Motor Carrier Safety Administration (FMCSA) what particular state or local law or regulation was involved, FMCSA has developed a system of suffix codes. The letters following “392.2” – the “suffix” — show which state or local law or regulation was involved.

When one of these codes is used, the officer should include a description of the specific violation in the “violation details” area on the actual inspection report. FYI: Summary roadside inspection reports (such as the ones visible in CSA’s SMS) do not show these details.

For more information, see our ezExplanation on Roadside Inspections.

Not all 392.2 violations are used in CSA

Not all of these state and local law or regulation violations are used by the FMCSA for scoring purposes. The Compliance, Safety, Accountability (CSA) Safety Measurement System (SMS) does not use the 392.2 violations that cannot be tied to crash causation. Here are a couple of examples: 392.2UCR Failure to pay UCR fee and 392.2W Size and weight are not used.

Most common 392.2 violations

Below are the top 10392.2violations written during 2021. All of these violations are safety-related, and therefore used in the CSA SMS for scoring. The BASIC within the SMS the violation is scored in is shown following the violation description.

392.2SLLS2 Speeding 6-10 miles per hour over the speed limit (Unsafe Driving)
392.2C Failure to obey traffic control device (Unsafe Driving)
392.2LV Lane Restriction violation (Unsafe Driving)
392.2SLLS3 Speeding 11-14 miles per hour over the speed limit (Unsafe Driving)
392.2WC Wheel (Mud) flaps missing or defective (Vehicle Maintenance)
392.2SLLS4 Speeding 15 or more miles per hour over the speed limit (Unsafe Driving)
392.2ML Failure to maintain lane (Unsafe Driving)
392.2SLLSWZ Speeding work/construction zone (Unsafe Driving)
392.2PK Unlawfully parking and/or leaving vehicle in the roadway (Unsafe Driving)
392.2FC Following too close (Unsafe Driving)

Key to remember

In general, FMCSA does not write traffic codes. They rely on local and state agencies to do that. When state or local traffic codes are violated, it appears on a roadside inspection report as a violation of 392.2, with a suffix indicating which traffic code was involved.

2023-04-13T05:00:00Z

Workplace vs. FMCSA: What is a safety-sensitive position?

A workplace safety definition for “safety-sensitive position” may lead some motor carriers to mistakenly put employees who don’t qualify in their DOT drug and alcohol testing program.

FMCSA: Clearly defined

The Federal Motor Carrier Safety Administration (FMCSA) clearly defines a safety-sensitive position.

It is one where the employee is expected to operate a commercial motor vehicle (CMV) requiring a commercial driver’s license (CDL). Only these drivers can be placed in the motor carrier’s DOT drug and alcohol testing program under 49 CFR Part 382.

As a result, a carrier would not classify a forklift operator, driver helper, and other positions as safety sensitive for purposes of testing under Part

What about non-CDL CMV drivers?

A driver who operates an FMCSA-regulated vehicle that does not require a CDL fits within the scope of workplace safety-sensitive duties, but not FMCSA.

For property-carrying vehicles, a non-CDL CMV is one that is:

10,001-26,000 pounds inclusive of a towed trailer, and
Not transporting placardable quantities of hazmat.

For passenger carriers, a non-CDL CMV is designed to transport 9-15 passengers, including the driver, for compensation.

Even though the above vehicles and drivers are subject to the bulk of FMCSA’s safety regulations, the vehicles (and subsequently the drivers) do not qualify for CDL licensing or FMCSA testing.

If the driver happens to hold CDL, it still does not qualify as a safety-sensitive position. Applicability is always based on whether the employee is assigned to operate a CDL CMV.

Are non-CDL CMV drivers subject to any drug and alcohol prohibitions?

Non-CDL CMV drivers are prohibited from operating while impaired under 49 CFR 392.4 and 392.5, but there is no testing mechanism under DOT authority. Testing would be best practice (non-DOT) and managed under the workplace drug program.

Vague definition under OSHA

If a motor carrier mistakenly uses the workplace criteria for its DOT testing, the number and types of positions placed in the random pool far exceed commercial drivers.

For the general workforce, the term “safety sensitive” has been tossed around, but never clearly defined by OSHA (Occupational Safety and Health Administration). Many safety professionals tie the term to OSHA’s General Duty Clause (GDC), which requires that employers provide all workers with a safe and healthful workplace.

Specifically, the GDC requires employers to recognize hazards that cause or likely will cause death or serious physical harm. Any job title that is likely to cause death or serious harm to someone — including the employee, coworkers, or the general public — is usually put on a list of safety-sensitive positions.

The employer must look at each job’s hazards and decide if the position is classified by its organization as safety sensitive. Examples may include:

Forklift drivers,
Heavy machinery operators, and
Crane operators.

Even someone who works as a roofer may be considered a safety-sensitive position because the employee could trip and fall from a high elevation, causing serious personal harm.

Key to remember: When assembling the list of names for your DOT testing program, only include those individuals who are expected to operate a CDL CMV.

2021-03-10T06:00:00Z

For-hire and private carriers: What’s the difference?

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 vs. private

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.

For-hire operating authority

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:

Property for-hire
Passenger for-hire
Household goods
Broker
Freight forwarder

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).

One size does not fit all

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.

Permanent authority required

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.

Getting it right

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?

2022-08-03T05:00:00Z

The importance of the split specimen in drug testing

A question we’ve been seeing a lot lately has to do with the split specimen process and the motor carrier’s responsibilities if one of their drivers requests that a split specimen be tested.

Drivers who are informed that they’ve failed a DOT drug test have the right to request that the secondary specimen be tested if they believe that the test result is inaccurate. Due process is an important aspect of our legal system, but waiting for a split specimen to be tested can cause some confusion for motor carriers. Here are some common questions we hear about the split specimen process.

What is a split specimen?

When a driver gives a urine sample for the purposes of DOT drug testing, the collector will split the specimen into two separate containers. The container labeled as the primary specimen will be tested by the lab; the container labeled as the secondary specimen is only tested if the driver requests that it be tested after the primary specimen is verified as positive, adulterated, or substituted.

How does a driver request that the split specimen be tested?

When the medical review officer (MRO) contacts the driver about a verified positive, adulterated, or substituted test, the MRO will inform the driver of the driver’s right to have the split specimen tested. The driver then has 72 hours from the time of notification to request via the MRO that the split specimen be tested.

What happens while the split specimen is being tested?

Because the driver’s primary specimen was verified positive, adulterated, or substituted, the motor carrier should have already pulled the driver from performing safety-sensitive functions. The driver cannot resume driving while the split specimen is being tested. Whether the driver is reassigned to a non-driving position or is suspended depends on the motor carrier’s drug and alcohol policy.

Who pays for the split specimen to be tested?

The regulations specify that the carrier cannot delay lab testing in order to collect payment from the driver. The secondary specimen should be submitted for testing as soon as the driver requests it, and motor carrier will be billed through the carrier’s lab account. In some cases, the motor carrier can seek reimbursement from the driver for full or partial costs of the split-specimen test.

Is the drug violation reported to the Drug and Alcohol Clearinghouse right away, or does the MRO wait for the results of the test on the secondary sample?

The MRO will report the positive, adulterated, or substituted drug test result to the Drug and Alcohol Clearinghouse within two business days of verifying the result for the primary specimen. Once the MRO receives the lab results for the secondary sample, one of three things happens:

The secondary test result reconfirms the primary test result. The violation stands and remains in the Clearinghouse.
The test of the secondary sample fails to reconfirm any of the original findings. The test will be canceled, and the MRO will change the result in the Clearinghouse within one business day of receiving the secondary test results.
The test of the split specimen does not reconfirm the original result but identifies something suspicious in the secondary sample. The regulations in 40.187 spell out a variety of situations that require the driver to be tested again, such as if the secondary sample is invalid or if part of the original result is reconfirmed but the sample also tests as substituted or adulterated. If any of these complex scenarios applies, the MRO will direct the carrier’s designated employer representative (DER) to immediately send the driver for another collection under direct observation. If that test result is negative and is not adulterated or substituted, the MRO will change the result in the Clearinghouse within one business day of receiving the secondary test results. Otherwise, the violation will stand and remain in the Clearinghouse.

Key to remember: Dividing a urine specimen into two samples allows for a driver to request that the secondary sample be tested if the first specimen indicates drug use. This is an important part of the driver’s right to due process.

2022-12-29T06:00:00Z

What does 392.2C mean on a roadside inspection report?

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.

What 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.

Who must pull into a weigh station?

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:

All vehicles over 16,000 pounds, the driver can safely bypass the scale if under the weight threshold.
All commercial motor vehicles, the driver should pull in. It is far better to be waived or green lighted through than to be chased down.

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.

What happens when a driver ignores signage?

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.

Handling violations

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:

Confusion over applicability
Inattentiveness (missing the sign)
Running late
Risky behavior (taking the chance that no one will pursue)
Concern over other violations discovered once stopped

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.

Most Popular Highlights In Human Resources

2024-08-28T05:00:00Z

When to skip a PIP and move to terminate an employee

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.

Firing

2022-11-18T06:00:00Z

FMLA — What does (and doesn’t) count toward 1,250 hours worked?

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:

Have worked at least 1,250 hours in the 12 months before leave is to begin,
Have worked for their employer at least 12 months, and
Work at a location with at least 50 company employees within 75 miles.

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.

HIPAA HIPPA FLSA Wage and Hour

2023-09-06T05:00:00Z

Appellate court sided with employee's (almost) 3-year-delayed FMLA claim

Back in October 2018, Laffon had a medical emergency and needed some time off under the federal Family and Medical Leave Act (FMLA).

Her leave lasted until November 15. Ten days after she returned to work, on November 26, her employer terminated her.

She sued, arguing that the employer retaliated against her because of her FMLA leave.

The catch? She didn't bring the suit until almost three years later.

No link between leave and termination

In court, the employer argued that there was no causal link between Laffon taking FMLA leave and her termination. Although the court documents aren't robust, they do reveal that the employer indicated that Laffon's allegations didn't show that her taking FMLA leave was a factor in the decision to terminate her. The documents showed only that the termination chronologically followed her leave.

The court agreed with the employer. It also agreed that Laffon failed to allege a willful violation of the FMLA, which would allow her to benefit from the FMLA's three-year statute of limitations.

Laffon appealed the case to the Ninth Circuit.

Statute of limitations

Under the FMLA, employees have two years from the date of the last event constituting the alleged violation for which they can bring a claim.

Those two years are extended to three years if the employer's actions were "willful." This means that an employee must show that the employer either knew or showed reckless disregard for whether its conduct violated the FMLA.

Ruling overturned

Fast forward to August 2023, when the Ninth Circuit reversed the lower court's decision. It indicated that, based on Laffon's amended complaint and liberally construing the law, her allegations establish that her leave was causally connected to her termination and that the employer's action (her termination) was willful.

Glymph v. CT Corporation Systems, No. 22-35735, Ninth Circuit Court of Appeals, August 22, 2023.

Key to remember: Terminating an employee soon after returning from FMLA leave is risky, unless there is a clear, well-documented, non-leave-related reason. Case documents did not show such a clear reason, which can also increase the risk of a willful finding. Employees have time to file claims, even years.

2022-07-19T05:00:00Z

How to calculate exempt employee salary during intermittent leave

Exempt employees are entitled to take intermittent leave under the Family and Medical Leave Act (FMLA), but must they continue to be paid their full salary? No, and here’s a story to help illustrate.

Meet Kaylee

Kaylee was all set to get the payroll done by the end of the day when she ran across an issue. Dean, an employee, had indicated in his time reporting that he had taken a few hours of FMLA leave during the week. Dean was exempt from the overtime provisions under the Fair Labor Standards Act, so he was generally to receive his weekly salary no matter how many hours he worked.

Kaylee was aware that the FMLA included an exception to this provision; that she could make deductions from an exempt employee’s salary for any hours taken as intermittent or reduced schedule FMLA leave within a workweek, without affecting the employee’s exempt status. Her issue, however, was calculating how much time Dean should be docked. He generally worked 9-10 hours per day.

Calculating pay

While not directly addressed in the current regulations, as an employer, you (and Kaylee) have some options when determining an exempt employee’s pay when taking FMLA leave on an intermittent or reduced schedule basis.

You may pay a proportionate part of the full salary for time actually worked. If, for example, an employee would normally work 40 hours per week and used four hours of unpaid leave under the FMLA, you may deduct 10 percent of the employee’s normal salary for that week. Basically, you would keep the employee as salaried and make appropriate adjustments to the salary on the basis of the employee’s regular workweek and hourly rate. Simply apply the hourly rate to the missed hours in the workweek.

You could otherwise convert the exempt employee to hourly during the period that the intermittent FMLA leave is being sought. This method, however, could create concerns regarding how to determine the hourly rate for the exempt employee. Perhaps the pay statement indicates an hourly rate attributable to the compensation for the employee.

Otherwise, you would need to discuss the situation with the employee about what hourly rate you plan to apply, the rationale behind it, and the employee’s schedule. Then you would need the employee’s written agreement in regard to the rate and his regular schedule/hours.

As another option, you could simply continue to pay the employee his or her full salary when he takes intermittent or reduced schedule FMLA leave.

Kaylee has a number of options to consider. If she chooses to make deductions from Dean’s salary, she should remember to have a written agreement with Dean regarding his normal schedule or average hours worked each week.

2023-01-12T06:00:00Z

Performance review timing and FMLA leave

A new year often begins a new round of employee performance reviews. Since the Family and Medical Leave Act (FMLA) allows eligible employees to take up to 12 (or 26) weeks of leave, many events can occur during an employee’s leave, including the employee’s pre-scheduled performance review. Such reviews might take place on an annual or other scheduled basis. How you treat the timing of those reviews should include some thought.

If, for example, Jo Employee takes 12 weeks of FMLA leave, during which her annual performance review is scheduled, here are some questions to ponder:

Do you look at all 12 months of Jo’s performance?
What if she hasn’t worked a full 12 months because of leave?
When can you actual do the review?
Can you delay it so you can look at a full 12-months of work?

Delaying a review

An annual performance review generally takes into consideration a full years’ worth of work. Some employers think it’s best to delay the performance review by the same amount of time an employee took FMLA leave to capture an entire years’ work. This practice, however, might risk running afoul of one of the cornerstones of the FMLA: Returning the employee to his or her position, including the equivalent pay, benefits, and working conditions.

The issues can be particularly concerning if the performance review affects wage increases or other compensation.

What the regulations say

The FMLA regulations indicate that an equivalent position includes equivalent pay, which includes any unconditional pay increases that may have occurred during the FMLA leave period. Equivalent pay also includes bonuses or payments, whether discretionary or non-discretionary. FMLA leave cannot undermine the employee’s right to such pay.

Furthermore, “… employers cannot use the taking of FMLA leave as a negative factor in employment actions, such as hiring, promotions, or disciplinary actions; nor can FMLA leave be counted under no fault attendance policies.” [29 CFR 825.220(c)]

Avoiding a negative factor

Therefore, you would need to look at whether delaying an employee’s performance review could be seen as having a negative factor for the employee.

If, for example, Jo Employee took 12 weeks of leave from April through June, during which she would otherwise have obtained a pay increase in May, but you delayed this increase until September (so you could use a full 12 months of work), you may have violated the equivalent pay provision. If delaying a review creates a new review schedule going forward, the negative impacts could continue.

If, however, a pay increase is conditioned upon seniority, length of service, or work performed, you would grant it in accordance with your policy or practice as applied to other employees on an equivalent leave status for a reason that does not qualify as FMLA leave.

In other words, don’t treat an employee on FMLA leave differently than you would an employee on other forms of leave.

Key to remember: It might be less risky to keep the performance review on schedule and prorate wage increases to account for FMLA leave.

2023-07-20T05:00:00Z

Dealing with FMLA Monday/Friday absences

The federal Family and Medical Leave Act (FMLA) allows eligible employees to take job-protected leave for certain qualifying reasons. Over the years, employees have gotten creative when scheduling such leave, including taking it on Mondays and/or Fridays to extend a weekend.

Employers trying to oversee schedules and meet other business needs might get frustrated when employees take leave. When employees take leave in suspicious patterns, the frustration swells.

It doesn’t help that the FMLA restricts when and how employers may obtain information on the reasons behind leave.

Employers, however, do have some resources available to them when determining whether a Monday/Friday absence pattern is valid, or if the employee is abusing leave.

Recertifying FMLA leave

Once employers have a certification supporting the need for a leave, they may not request recertification more often than every 30 days, or until the minimum duration of the condition listed on the certification has expired.

Employers may, however, request recertification more often if:

The employee requests an extension of leave,
Circumstances described by the initial certification have changed significantly, or
They receive information that casts doubt upon the reason for leave or the continuing validity of the certification.

When employers suspect FMLA abuse, they should review the information contained in the certification to see if the absences match. If not, they may investigate the situation further.

Asking about absence patterns

To help with this investigation, when requesting a recertification, employers may include a record of the employee’s absences and ask the health care provider if the pattern is consistent with the serious health condition.

It’s true that employers may not generally contact the employee’s health care provider directly for this information, but they may add this type of question to the medical recertification form, and direct the employee to have it completed.

Tracking absences

In such situations, employers might want to review the absence patterns of employees in question and be on the lookout for suspicious absences in the future.

Effectively tracking all leave is a must to identify patterns that could indicate FMLA leave abuse. If employers learn that an absence is not for a valid FMLA-qualifying reason, the employee is not entitled to the protections of the law for such an absence.

Key to remember: If employees are suspiciously taking FMLA leave such as on Mondays and Fridays, employers may request a recertification supporting the leave pattern.

Most Popular Highlights In Safety & Health

2023-05-18T05:00:00Z

Breaking the plane of a confined space doesn’t require a complete entry

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.

Letters of Interpretation

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:

An entrant can possibly suffer a burn while reaching into a PRCS, which is so classified because it contains a thermal hazard.
An entrant can possibly fall into a below-grade PRCS while standing on a vertical ladder in the opening of the space, which is so classified because it contains an oxygen-deficient atmosphere.
An entrant can possibly become unconscious as result of his head accidentally entering a PRCS while they are reaching into a PRCS, which is so classified because it contains an oxygen deficient atmosphere.”

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.

OSHA’s guidance continues

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:

An entrant reaches through the opening of a horizontal PRCS, which is so classified only because it contains exposed live electrical parts ten feet from the opening.
An entrant puts his head through the opening of an overhead PRCS, which is so classified only because it contains unguarded rotating parts ten feet from the opening.

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.

Key to remember

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.

2021-02-15T06:00:00Z

OSHA clarifies whether a forklift with a boom is a crane

In an LOI concerning forklifts used in construction, dated June 21, 2012, OSHA addressed whether or not a forklift operator — not a crane operator — can use a designated forklift boom with a hook as long as it meets the load requirements. According to OSHA, the answer depends on the forklift’s original design, the boom attachment design, and how the forklift and boom are operated together to move the load. OSHA said that equipment designed to function as both a crane and a forklift would be considered multi-purpose equipment covered by the crane standards when configured and used as a crane.

However, in the case of the LOI above, the company submitted a picture of and information about a typical vertical mast forklift with a variable-length boom attachment that uses slings or a rope to hoist and move a suspended load. The type of forklift described was designed by the manufacturer to lift palletized loads or those that can be safely handled and supported by the equipment’s forks. OSHA said that the described configuration of a forklift, unlike a crane or derrick, can only provide powered horizontal and vertical movement of the suspended load by both driving the forklift horizontally in addition to moving its mast and forks. Although the described boom attachment extends the forks’ reach, it was not designed to provide the load’s powered horizontal and vertical movement.

OSHA concluded that, in this case, the forklift configured with the described boom attachment was not covered by the crane standard.

2022-11-07T06:00:00Z

Alternate entry procedures: When can they be used?

The Agency regularly publishes OSHA news about citations or injuries stemming from confined space entry incidents. Many employers fail to establish proper entry procedures for entrants. The confined space standard includes alternate entry procedures under 1910.146(c)(5) that allow for entry without a permit under certain conditions. These procedures allow an employer to avoid the need for a permit system, rescue services, and certain other requirements if:

An employer can demonstrate that the only hazard posed by the permit space is an actual or potentially hazardous atmosphere,
An employer can demonstrate that continuous forced air ventilation alone is sufficient to maintain that permit space safe for entry,
An employer develops monitoring and inspection data that support these demonstrations (if an initial entry of the permit space is needed to obtain this data, that entry must follow the program and entry permit requirements),
The determination and supporting data are documented and made available to each employee who enters the space or to each employee’s authorized representative, and
Entry into the permit space follows the requirements of paragraph (c)(5)(ii) as outlined below.

The requirements for entering a space under the alternate entry procedures of paragraph (c)(5)(ii) are as follows:

Any conditions making it unsafe to remove an entrance cover must be eliminated before the cover is removed.
When entrance covers are removed, the opening must be promptly guarded by a railing, temporary cover, or other temporary barriers that will prevent an accidental fall through the opening and protect each employee working in the space from foreign objects entering the space.
Before anyone enters, the internal atmosphere must be tested with a calibrated direct-reading instrument for oxygen content, flammable gases and vapors, and potential toxic air contaminants, in that order. Any employee who enters, or that employee’s authorized representative, must be allowed to observe this pre-entry testing.
There may be no hazardous atmosphere within the space whenever any employee is inside the space.
As necessary, entrants must periodically test the atmosphere within the space to ensure that the ventilation prevents the buildup of a hazardous atmosphere. Any employee who enters, or that employee’s authorized representative, must be allowed to observe this periodic testing.

Use continuous forced air ventilation as follows:

An employee may not enter the space until the forced air ventilation has eliminated any hazardous atmosphere;
The forced air ventilation must be directed to ventilate the immediate areas where an employee is or will be present within the space and must continue until all employees have left the space; and
The air supply for the forced air ventilation must be from a clean source and may not increase the hazards in the space.

If a hazardous atmosphere is detected during entry:

Each employee must leave the space immediately;
A competent person must evaluate the space to determine how the hazardous atmosphere developed; and
Employers must protect employees from the hazardous atmosphere before any subsequent entry.

The employer must verify that the space is safe for entry and that the above pre-entry measures have been taken through a written certification that contains the date, the location of the space, and the signature of the person providing the certification. The certification must be made before entry and available to each employee entering the space or to that employee’s authorized representative.

In order to use alternate entry procedures, the data must demonstrate that there are no non-atmospheric hazards and that the ventilation will keep the air inside the permit space safe for entry. This should include the following:

Volume of the space to be entered;
Capacity and configuration of the ventilation equipment to be used; • Identified atmospheric hazards and potential hazards;
The sampling results from routine testing of the space from the time ventilating began through the final determination of acceptable entry conditions; and
Atmospheric hazards created by work in the space.

Employers must ensure that entrants are adequately trained in confined space entry procedures. Identify a competent person with whom workers can speak about their questions or assist with assessing hazards and implementing controls.

Key to remember

The confined space standard includes alternate entry procedures under 1910.146(c)(5) that allow for entry without a permit under certain conditions. These procedures allow an employer to avoid the need for a permit system, rescue services, and certain other requirements.

2023-11-16T06:00:00Z

Lack of posted weight capacity on racking can lead to OSHA citations

Pallet racks are utilized to house millions of pounds of material each day. How much weight a racking system can hold depends on a number of factors. While OSHA does not specifically require posting the load capacity rating on steel racking, they are consistently citing employers for not displaying it.

Aside from a very general “stored items must be secured” mention in 1910.176(b), OSHA has no specific racking safety standards or guidelines. Because of this, they typically cite racking hazards under the General Duty Clause of the OSH Act, which simply states that each employer must provide a workplace that is free from recognized hazards.

Exact loads can vary depending on the configuration of the pallet rack and the types of pallets used. If workers are placing loads in racks, they need to be trained to understand the weight of the load and whether or not the rack can handle it. Employers should have systems in place that include weighing pallets and materials prior to placement on the racking system. They should also maintain, and continually update, a weight inventory of all materials being stored and/or removed from the racks.

During enforcement actions, OSHA can reference other standards that could be used in times of abatement. In the case of load capacity rating, they often reference the industry standard ANSI MH16.1.

About ANSI MH16.1

Industrial steel storage racks, moveable shelf racks, rack-supported systems, and stacker racks made of hot-rolled and/or cold-formed steel structural members are covered by the MH16.1 standard. The standard is intended to be applied to the design of the storage rack structure.

One particular section (1.4.2 – Plaque) requires displaying one or more permanent plaques that contain information including:

maximum permissible unit load,
maximum uniformly distributed load per level,
average unit load, and
maximum total load per bay.

This is not to say that employers need to display a plaque on every section of steel racking. What they should pay particular attention to is where the standard mentions displaying the maximum total load per bay.

Inspectors reference section 1.4.2 of the MH16.1 standard when identifying racking hazards. For example, OSHA may state that one way to abate a racking hazard would be to include the wording on a rack label that communicates the load capacity so employees don’t overload the racking.

Other considerations

If an OSHA inspector is on site to review your racking system, they may also look for hazards associated with anchoring of the system, as well as inspection and maintenance.

It is recommended that the bottom of all columns be furnished with column base plates and be anchored to the floor with anchor bolts capable of resisting the forces caused by the loads on the rack.

Storage racks should also be inspected regularly, with sufficient clearance around them, and should not be damaged, out of plumb, or overloaded. An effective maintenance and inspection program will bring awareness to things such as keeping aisles clear and providing sufficient clearance for material handling equipment; ensuring racks are properly aligned, plumb, and level, per manufacturer’s instructions; and encourage employees to promptly report any damage to racks.

The OSHA requirements for steel racking are vague. Even though there are no specific standards that require displaying the load rating on racking, being anchored to the floor, or inspected, citations have and will be given under the General Duty Clause if discovered.

Keep in mind also, OSHA may reference other standards during enforcement actions — sometimes there are other means of abatement, so an employer doesn’t have to follow the ANSI standard, but other times, there isn’t much alternative.

Key to remember: Steel storage racks should display the maximum load capacity rating, be bolted to the floor, and inspected.

2023-06-09T05:00:00Z

Understanding the limitations of eyewash bottles

OSHA’s 1910.151(c) standard, Medical Services and First Aid, requires that employers provide emergency eyewashes when employees may be exposed to injurious corrosive materials during the course of their work. Employers have a wide range of eyewash types available to choose from on the market, including portable units (i.e., eyewash bottles). While many employers use bottles, OSHA says that they can’t be the only eyewash made available to employees, and their use should be limited.

Bottles vs. other eyewashes for emergency equipment

The OSHA standard does not provide a great deal of detail on eyewashes for employers. However, where the regulation is silent, OSHA refers employers to the American National Standards Institute (ANSI) standard Z358.1-2009, “Emergency Eyewash and Shower Equipment,” regarding installation, operation, and maintenance of emergency eyewashes. This includes capacity and flushing requirements. The ANSI standard states that an eyewash must deliver 0.4 gallons of flushing fluid per minute for at least 15 minutes.

As such, ANSI says that an eyewash bottle does not meet these criteria; therefore, it can only be used to support eyewashes that do (i.e., plumbed and self-contained units), but cannot replace them.

Capacity of eyewash bottles

The reason for this limitation is that eyewash bottles simply cannot provide the required 15 minutes of flushing. Eyewash bottles typically hold less than a gallon of water, which would supply the user with flushing fluid for approximately 1 minute. Even larger self-contained units (those with bladders) that have a capacity of 5 to 10 gallons would only provide maximum use of about 5 minutes.

In other words, eyewash bottles don’t provide an adequate amount of flushing fluid and cannot be considered a primary means of protection.

Limitations of using eyewash bottles

For this reason, OSHA warns that the use of eyewash bottles should be limited. In a 1986 memorandum to Regional Administrators, the agency states, “In general, squeeze bottles should not be used except where the hazard severity or distance from plumbed eyewash equipment requires personal equipment at work stations for immediate flushing prior to prolonged flushing at a plumbed or self-contained unit.”

In other words, employers can provide eyewash bottles in instances where plumbed or self-contained units can’t reasonably be provided (e.g., an outside yard) in the immediate work area, but only until they can reach a unit which can provide the amount of flushing fluid necessary to flush the eyes for at least 15 minutes.

OSHA expects the employer to determine the level of the potential risk to employees and provide eyewash (and/or shower) protection accordingly. The severity of the hazard(s) involved is a critical consideration when making this determination. In the past, OSHA has said that 1910.151(c)is meant to cover strong acids and alkalis, and the requirement to provide suitable facilities for quick drenching or flushing depends on the exposure and the strength of the hazardous chemical. Chemicals and materials such as household detergents or cleaners, sawdust, metal filings, etc. would not require emergency eyewash (or shower) under the standard.

OSHA enforcement on eyewashes

If an employer determines that an eyewash is needed, then it must meet the provisions set forth in the American National Standards Institute (ANSI) standard Z358.1. The agency uses the ANSI standard as an enforcement tool. This is clarified in a November 1, 2002, Letter of Interpretation, which says, “If OSHA inspects a workplace and finds unsuitable facilities for quick drenching or flushing of the eyes and body, a citation under 29 CFR 1910.151(c)would be issued. When determining whether the eyewash or shower facilities are suitable given the circumstances of a particular worksite, OSHA may refer to the most recent consensus standard regarding eyewash or shower equipment…”

Need information on eyewash inspections? See our Institute document on Inspections and Maintenance.

Without the ANSI standard, employers would find it difficult to demonstrate to OSHA exactly how their eyewash and shower units were suitable exclusive to the regulatory language under 1910.151(c) since it’s limited and vague.

Key to remember

Eyewash bottles don’t meet the requirement under 1910.151(c) to provide “suitable” facilities for quick drenching or flushing of the eyes. They cannot be the only eyewash provided in the workplace.

2022-06-13T05:00:00Z

Cleaning with compressed air: Making sense of the OSHA regulation

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):

“Compressed air used for cleaning. Compressed air shall not be used for cleaning purposes except where reduced to less than 30 psi and then only with effective chip guarding and personal protective equipment.” Because the regulation is short and somewhat vague, OSHA has clarified the issue in a compliance directive and letters of interpretation.

What is “chip guarding”?

“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.

What about the psi requirement?

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.

What about cleaning clothing/bodies?

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.

The dangers

There are numerous dangers of improperly using compressed air:

Embolism: If compressed air enters the bloodstream through a body opening or skin break, it can create an embolism (air bubble) that can be life threatening.
Eye damage: Particles that are being blown can “blow back” and strike the eyes. The air itself can also cause injury if it is pointed toward the eyes.
Hearing loss: Some compressed air equipment can be loud enough to damage hearing. Always wear proper PPE.
Combustible dust: If compressed air is used to blow certain dusts, it can create a suspension in the air that could ignite if there is an ignition source.
Respiratory: Particles or air can enter the respiratory system, posing deadly hazards.
Whips: If not properly secured, hoses can whip and cause severe injury.

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.

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