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On September 22, California Governor Gavin Newsom signed legislation that will require warehouse employers to provide employees with a written description of production quota expectations and any potential adverse employment action that could result from failure to meet quotas. The law takes effect Jan. 1, 2022.
Under the new legislation employees are not to be required to meet a quota that prevents compliance with meal or rest periods, use of bathroom facilities, including reasonable travel time to and from bathroom facilities, or occupational health and safety laws. Also, employers cannot take adverse employment action against an employee for failure to meet a quota that does not allow a worker to comply with those rights.
The state’s Labor Commissioner will be able to issue citations and access worker’s compensation data to identify facilities where there are high rates of injury likely due to the use of unsafe quotas.
On September 22, California Governor Gavin Newsom signed legislation that will require warehouse employers to provide employees with a written description of production quota expectations and any potential adverse employment action that could result from failure to meet quotas. The law takes effect Jan. 1, 2022.
Under the new legislation employees are not to be required to meet a quota that prevents compliance with meal or rest periods, use of bathroom facilities, including reasonable travel time to and from bathroom facilities, or occupational health and safety laws. Also, employers cannot take adverse employment action against an employee for failure to meet a quota that does not allow a worker to comply with those rights.
The state’s Labor Commissioner will be able to issue citations and access worker’s compensation data to identify facilities where there are high rates of injury likely due to the use of unsafe quotas.
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As the common cold, flu, and even lingering cases of COVID rear their heads throughout the year, many may reach for a mask as a precaution. But are your masks going to offer the protection you need? Employers must understand the differences between the various masks workers depend on for their safety.
Although most mask mandates have been lifted, the Centers for Disease Control (CDC) still recommends wearing quality masks over the nose and mouth in high traffic or congested areas, such as airplanes, at concerts, or in large groups. With many mask options floating around, it’s important to understand the differences between N95, KN95, cloth, and surgical masks.
According to the National Institute of Health (NIH), masks are intended to block respiratory droplets and aerosols that may contain viral particles. Overall, masks can be effective and are recommended during flu and cold season, but which mask is best is going to depend upon the circumstances.
Masks differ in the maximum internal leak proportion limit (the highest level of leak protection offered), so here’s the low-down:
The theory is that wearing some mask is better than wearing no mask at all. However, the use of some masks, such as N-95s can result in some not-so-pleasant physical responses such as anxiety, headaches, nausea, and vomiting. Additionally, wearing the wrong mask or incorrectly wearing a mask can create a false sense of security, placing the wearer at even greater risk. So, how can workers overcome the negatives of wearing a mask?
When wearing masks, workers can ease the “burden” by:
Keys to Remember: While surgical and cloth masks offer some protection from viruses, N95s and KN95s masks offer better protection in most cases. Employers must ensure workers are choosing masks that fit and filter properly to ensure safe use and appropriate level of protection.
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 141
[EPA-HQ-OW-2020-0530; FRL-6791-03-OW]
RIN 2040-AF89
Revisions to the Unregulated Contaminant Monitoring Rule (UCMR 5) for Public Water Systems and Announcement of Public Meetings
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule and notice of public meetings.
SUMMARY: The U.S. Environmental Protection Agency (EPA) is finalizing a Safe Drinking Water Act (SDWA) rule that requires certain public water systems (PWSs) to collect national occurrence data for 29 per- and polyfluoroalkyl substances (PFAS) and lithium. Subject to the availability of appropriations, EPA will include all systems serving 3,300 or more people and a representative sample of 800 systems serving 25 to 3,299 people. If EPA does not receive the appropriations needed for monitoring all of these systems in a given year, EPA will reduce the number of systems serving 25 to 10,000 people that will be asked to perform monitoring. This final rule is a key action to ensure science-based decision-making and prioritize protection of disadvantaged communities in accordance with EPA's PFAS Strategic Roadmap. EPA is also announcing plans for public webinars to discuss implementation of the fifth Unregulated Contaminant Monitoring Rule (UCMR 5).
DATES: This final rule is effective on January 26, 2022. The incorporation by reference of certain publications listed in this final rule is approved by the Director of the Federal Register as of January 26, 2022.
ADDRESSES: EPA has established a docket for this action under Docket ID No. EPA-HQ-OW-2020-0530. All documents in the docket are listed on the https://www.regulations.gov website. Although listed in the index, some information is not publicly available, e.g., CBI or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the internet and will be publicly available only in hard copy form. Publicly available docket materials are available electronically through https://www.regulations.gov.
FOR FURTHER INFORMATION CONTACT: Brenda D. Bowden, Standards and Risk Management Division (SRMD), Office of Ground Water and Drinking Water (OGWDW) (MS 140), Environmental Protection Agency, 26 West Martin Luther King Drive, Cincinnati, Ohio 45268; telephone number: (513) 569-7961; email address: bowden.brenda@epa.gov; or Melissa Simic, SRMD, OGWDW (MS 140), Environmental Protection Agency, 26 West Martin Luther King Drive, Cincinnati, Ohio 45268; telephone number: (513) 569-7864; email address: simic.melissa@epa.gov. For general information, visit the Ground Water and Drinking Water web page at: https://www.epa.gov/ground-water-and-drinking-water.
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Summary Information
A. Purpose of the Regulatory Action
1. What action is EPA taking?
2. Does this action apply to me?
3. What is EPA's authority for taking this action?
4. What is the applicability date?
B. Summary of the Regulatory Action
C. Economic Analysis
1. What is the estimated cost of this action?
2. What are the benefits of this action?
II. Public Participation
A. What meetings have been held in preparation for UCMR 5?
B. How do I participate in the upcoming meetings?
1. Meeting Participation
2. Meeting Materials
III. General Information
A. How are CCL, UCMR, Regulatory Determination process, and NCOD interrelated?
B. What are the Consumer Confidence Reporting and Public Notice Reporting requirements for public water systems that are subject to UCMR?
C. What is the UCMR 5 timeline?
D. What is the role of “States” in UCMR?
E. How did EPA consider Children's Environmental Health?
F. How did EPA address Environmental Justice?
G. How did EPA coordinate with Indian Tribal Governments?
H. How are laboratories approved for UCMR 5 analyses?
1. Request To Participate
2. Registration
3. Application Package
4. EPA's Review of Application Package
5. Proficiency Testing
6. Written EPA Approval
I. What documents are being incorporated by reference?
1. Methods From the U.S. Environmental Protection Agency
2. Alternative Methods From American Public Health Association—Standard Methods (SM)
3. Methods From ASTM International
IV. Description of Final Rule and Summary of Responses to Public Comments
A. What contaminants must be monitored under UCMR 5?
1. This Final Rule
2. Summary of Major Comments and EPA Responses
a. Aggregate PFAS Measure
b. Legionella Pneumophila
c. Haloacetonitriles
d. 1,2,3-Trichloropropane
B. What is the UCMR 5 sampling design?
1. This Final Rule
2. Summary of Major Comments and EPA Responses
C. What is the sampling frequency and timing?
1. This Final Rule
2. Summary of Major Comments and EPA Responses
D. Where are the sampling locations and what is representative monitoring?
1. This Final Rule
2. Summary of Major Comments and EPA Responses
E. How long do laboratories and PWSs have to report data?
1. This Final Rule
2. Summary of Major Comments and EPA Responses
F. What are the reporting requirements for UCMR 5?
1. This Final Rule
2. Summary of Major Comments and EPA Responses
a. Data Elements
b. Reporting State Data
G. What are the UCMR 5 Minimum Reporting Levels (MRLs) and how were they determined?
1. This Final Rule
2. Summary of Major Comments and EPA Responses
H. What are the requirements for laboratory analysis of field reagent blank samples?
1. This Final Rule
2. Summary of Major Comments and EPA Responses
I. How will EPA support risk communication for UCMR 5 results?
V. 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
K. Congressional Review Act (CRA)
VI. References
Abbreviations and Acronyms
μg/L Microgram per Liter
11Cl-PF3OUdS 11-chloroeicosafluoro-3-oxaundecane-1-sulfonic Acid
4:2 FTS 1H, 1H, 2H, 2H-perfluorohexane Sulfonic Acid
6:2 FTS 1H, 1H, 2H, 2H-perfluorooctane Sulfonic Acid
8:2 FTS 1H, 1H, 2H, 2H-perfluorodecane Sulfonic Acid
9Cl-PF3ONS 9-chlorohexadecafluoro-3-oxanone-1-sulfonic Acid
ADONA 4,8-dioxa-3H-perfluorononanoic Acid
AES Atomic Emission Spectrometry
ASDWA Association of State Drinking Water Administrators
ASTM ASTM International
AWIA America's Water Infrastructure Act of 2018
CASRN Chemical Abstracts Service Registry Number
CBI Confidential Business Information
CCL Contaminant Candidate List
CCR Consumer Confidence Report
CFR Code of Federal Regulations
CRA Congressional Review Act
CWS Community Water System
DBP Disinfection Byproduct
DWSRF Drinking Water State Revolving Fund
EPA United States Environmental Protection Agency
EPTDS Entry Point to the Distribution System
FR Federal Register
FRB Field Reagent Blank
GW Ground Water
GWRMP Ground Water Representative Monitoring Plan
HFPO-DA Hexafluoropropylene Oxide Dimer Acid (GenX)
HRL Health Reference Level
ICP Inductively Coupled Plasma
ICR Information Collection Request
IDC Initial Demonstration of Capability
LCMRL Lowest Concentration Minimum Reporting Level
LC/MS/MS Liquid Chromatography/Tandem Mass Spectrometry
MDBP Microbial and Disinfection Byproduct
MRL Minimum Reporting Level
NAICS North American Industry Classification System
NCOD National Contaminant Occurrence Database
NDAA National Defense Authorization Act for Fiscal Year 2020
NEtFOSAA N-ethyl Perfluorooctanesulfonamidoacetic Acid
NFDHA Nonafluoro‐3,6‐dioxaheptanoic Acid
ng/L Nanogram per Liter
NMeFOSAA N-methyl Perfluorooctanesulfonamidoacetic Acid
NPDWR National Primary Drinking Water Regulation
NTNCWS Non-transient Non-community Water System
NTTAA National Technology Transfer and Advancement Act
NTWC National Tribal Water Council
OGWDW Office of Ground Water and Drinking Water
OMB Office of Management and Budget
PFAS Per- and Polyfluoroalkyl Substances
PFBA Perfluorobutanoic Acid
PFBS Perfluorobutanesulfonic Acid
PFDA Perfluorodecanoic Acid
PFDoA Perfluorododecanoic Acid
PFEESA Perfluoro (2‐ethoxyethane) Sulfonic Acid
PFHpA Perfluoroheptanoic Acid
PFHpS Perfluoroheptanesulfonic Acid
PFHxA Perfluorohexanoic Acid
PFHxS Perfluorohexanesulfonic Acid
PFMBA Perfluoro‐4‐methoxybutanoic Acid
PFMPA Perfluoro‐3‐methoxypropanoic Acid
PFNA Perfluorononanoic Acid
PFOA Perfluorooctanoic Acid
PFOS Perfluorooctanesulfonic Acid
PFPeA Perfluoropentanoic Acid
PFPeS Perfluoropentanesulfonic Acid
PFTA Perfluorotetradecanoic Acid
PFTrDA Perfluorotridecanoic Acid
PFUnA Perfluoroundecanoic Acid
PN Public Notice
PRA Paperwork Reduction Act
PT Proficiency Testing
PWS Public Water System
QC Quality Control
RFA Regulatory Flexibility Act
SBA Small Business Administration
SBREFA Small Business Regulatory Enforcement Fairness Act
SDWA Safe Drinking Water Act
SDWARS Safe Drinking Water Accession and Review System
SDWIS/Fed Safe Drinking Water Information System Federal Reporting Services
SM Standard Methods for the Examination of Water and Wastewater
SOP Standard Operating Procedure
SPE Solid Phase Extraction
SRMD Standards and Risk Management Division
SW Surface Water
SWTR Surface Water Treatment Rule
TNCWS Transient Non-community Water System
TOF Total Organic Fluorine
TOP Total Oxidizable Precursors
UCMR Unregulated Contaminant Monitoring Rule
UMRA Unfunded Mandates Reform Act of 1995
U.S. United States
USEPA United States Environmental Protection Agency
I. Summary Information
A. Purpose of the Regulatory Action
1. What action is EPA taking?
This final rule requires certain public water systems (PWSs), described in section I.A.2 of this preamble, to collect national occurrence data for 29 PFAS and lithium. PFAS and lithium are not currently subject to national primary drinking water regulations, and EPA is requiring collection of data under UCMR 5 to inform EPA regulatory determinations and risk-management decisions. Consistent with EPA's PFAS Strategic Roadmap, UCMR 5 will provide new data critically needed to improve EPA's understanding of the frequency that 29 PFAS (and lithium) are found in the nation's drinking water systems and at what levels. This data will ensure science-based decision-making and help prioritize protection of disadvantaged communities.
2. Does this action apply to me?
This final rule applies to PWSs described in this section. PWSs are systems that provide water for human consumption through pipes, or constructed conveyances, to at least 15 service connections or that regularly serve an average of at least 25 individuals daily at least 60 days out of the year. A community water system (CWS) is a PWS that has at least 15 service connections used by year-round residents or regularly serves at least 25 year-round residents. A non-transient non-community water system (NTNCWS) is a PWS that is not a CWS and that regularly serves at least 25 of the same people over 6 months per year. Under this final rule, all large CWSs and NTNCWSs serving more than 10,000 people are required to monitor. In addition, small CWSs and NTNCWSs serving between 3,300 and 10,000 people are required to monitor (subject to available EPA appropriations and EPA notification of such requirement) as are the PWSs included in a nationally representative sample of CWSs and NTNCWSs serving between 25 and 3,299 people (see “Selection of Nationally Representative Public Water Systems for the Unregulated Contaminant Monitoring Rule: 2021 Update” for a description of the statistical approach for EPA's selection of the nationally representative sample (USEPA, 2021a), available in the UCMR 5 public docket). EPA expects to clarify the monitoring responsibilities for affected small systems by approximately July 1 of each year preceding sample collection, based on the availability of appropriations each year.
As in previous UCMRs, transient non-community water systems (TNCWSs) ( i.e., non-community water systems that do not regularly serve at least 25 of the same people over 6 months per year) are not required to monitor under UCMR 5. EPA leads UCMR 5 monitoring as a direct-implementation program. States, Territories, and Tribes with primary enforcement responsibility (primacy) to administer the regulatory program for PWSs under SDWA (hereinafter collectively referred to in this document as “states”), can participate in the implementation of UCMR 5 through voluntary Partnership Agreements (see discussion of Partnership Agreements in Section III.D of this preamble). Under Partnership Agreements, states can choose to be involved in various aspects of UCMR 5 monitoring for PWSs they oversee; however, the PWS remains responsible for compliance with the final rule. Potentially regulated categories and entities are identified in the following table.
Category | Examples of potentially regulated entities | NAICS * |
---|---|---|
* NAICS = North American Industry Classification System. | ||
State, local, & Tribal governments | State, local, and Tribal governments that analyze water samples on behalf of PWSs required to conduct such analysis; State, local, and Tribal governments that directly operate CWSs and NTNCWSs required to monitor | 924110 |
Industry | Private operators of CWSs and NTNCWSs required to monitor | 221310 |
Municipalities | Municipal operators of CWSs and NTNCWSs required to monitor | 924110 |
This table is not intended to be exhaustive, but rather provides a guide for readers regarding entities likely to be regulated by this action. This table lists the types of entities that EPA is aware could potentially be regulated by this action. Other types of entities not listed in the table could also be regulated. To determine whether your entity is regulated by this action, you should carefully examine the definition of PWS found in Title 40 in the Code of Federal Regulations (CFR) at 40 CFR 141.2 and 141.3, and the applicability criteria found in 40 CFR 141.40(a)(1) and (2). If you have questions regarding the applicability of this action to a particular entity, please consult the contacts listed in the preceding FOR FURTHER INFORMATION CONTACT section of this preamble.
3. What is EPA's authority for taking this action?
As part of EPA's responsibilities under SDWA, the agency implements section 1445(a)(2), Monitoring Program for Unregulated Contaminants. This section, as amended in 1996, requires that once every five years, beginning in August 1999, EPA issue a list of not more than 30 unregulated contaminants to be monitored by PWSs. SDWA requires that EPA enter the monitoring data into the agency's publicly available National Contaminant Occurrence Database (NCOD) at https://www.epa.gov/sdwa/national-contaminant-occurrence-database-ncod.
EPA must vary the frequency and schedule for monitoring based on the number of people served, the source of supply, and the contaminants likely to be found. EPA is using SDWA Section 1445(a)(2) authority as the basis for monitoring the unregulated contaminants under this final rule.
Section 2021 of America's Water Infrastructure Act of 2018 (AWIA) (Pub. L. 115-270) amended SDWA and specifies that, subject to the availability of EPA appropriations for such purpose and sufficient laboratory capacity, EPA's UCMR program must require all PWSs serving between 3,300 and 10,000 people to monitor for the contaminants in a particular UCMR cycle, and ensure that only a nationally representative sample of systems serving between 25 and 3,299 people are required to monitor for those contaminants. EPA has developed this final rule anticipating that necessary appropriations will become available; however, to date, Congress has not appropriated additional funding ( i.e., funding in addition to the $2.0 million that EPA has historically set aside each year from the Drinking Water State Revolving Fund, using SDWA authority, to support UCMR monitoring at small systems) to cover monitoring expenses for all PWSs serving between 3,300 and 10,000 people. Provisions in the final rule enable the agency to adjust the number of these systems that must monitor based upon available appropriations.
AWIA did not amend the original SDWA requirements for large PWSs. Therefore, PWSs serving a population larger than 10,000 people continue to be responsible for participating in UCMR.
Section 7311 of the National Defense Authorization Act for Fiscal Year 2020 (NDAA) (Pub. L. 116-92) amended SDWA and specifies that EPA shall include all PFAS in UCMR 5 for which a drinking water method has been validated by the Administrator and that are not subject to a national primary drinking water regulation.
4. What is the applicability date?
The applicability date represents an internal milestone used by EPA to determine if a PWS is included in the UCMR program and whether it will be treated as small ( i.e., serving 25 to 10,000 people) or large ( i.e., serving more than 10,000 people). It does not represent a date by which respondents need to take any action. The determination of whether a PWS is required to monitor under UCMR 5 is based on the type of system ( e.g., CWS, NTNCWS, etc.) and its retail population served, as indicated by the Safe Drinking Water Information System Federal Reporting Services (SDWIS/Fed) inventory on February 1, 2021. SDWIS/Fed can be accessed at https://www.epa.gov/ground-water-and-drinking-water/safe-drinking-water-information-system-sdwis-federal-reporting. Examining water system type and population served as of February 1, 2021 allowed EPA to develop a draft list of PWSs tentatively subject to UCMR 5 and share that list with the states during 2021 for their review. This advance planning and review then allowed EPA to load state-reviewed PWS information into EPA's reporting system so that those PWSs can be promptly notified upon publication of this final rule. If a PWS receives such notification and believes it has been erroneously included in UCMR 5 based on an incorrect retail population, the system should contact their state authority to verify its population served as of the applicability date. If an error impacting rule applicability is identified, the state or the PWS may contact EPA to address the error. The 5-year UCMR 5 cycle spans January 2022 through December 2026, with preparations in 2022, sample collection between January 1, 2023, and December 31, 2025, and completion of data reporting in 2026. By approximately July 1 of the year prior to each year's sample collection ( i.e., by July 1, 2022 for 2023 sampling; by July 1, 2023 for 2024 sampling; and by July 1, 2024 for 2025 sampling) EPA expects to determine whether it has received necessary appropriations to support its plan to monitor at all systems serving between 3,300 and 10,000 people and at a representative group of 800 smaller systems. As EPA finalizes its small-system plan for each sample collection year, the agency will notify the small PWSs accordingly.
B. Summary of the Regulatory Action
EPA is requiring certain PWSs to collect occurrence data for 29 PFAS and lithium. This document addresses key aspects of UCMR 5, including the following: Analytical methods to measure the contaminants; laboratory approval; monitoring timeframe; sampling locations; data elements ( i.e., information required to be collected along with the occurrence data); data reporting timeframes; monitoring cost; public participation; conforming and editorial changes, such as those necessary to remove requirements solely related to UCMR 4; and EPA responses to public comments on the proposed rule. This document also discusses the implication for UCMR 5 of the AWIA Section 2021(a) requirement that EPA collect monitoring data from all systems serving more than 3,300 people “subject to the availability of appropriations.”
Regardless of whether EPA is able to carry out the small-system monitoring as planned, or instead reduces the scope of that monitoring, the small-system data collection, coupled with data collection from all systems serving more than 10,000 people under this action, will provide scientifically valid data on the national occurrence of 29 PFAS and lithium in drinking water. The UCMR data are the primary source of national occurrence data that EPA uses to inform regulatory and other risk management decisions for drinking water contaminant candidates.
EPA is required under SDWA Section 1445(a)(2)(C)(ii) to pay the “reasonable cost of such testing and laboratory analysis” for all applicable PWSs serving 25 to 10,000 people. Consistent with AWIA, EPA will require monitoring at as many systems serving 3,300 to 10,000 people as appropriations support (see Section IV.B of this preamble for more information on the agency's sampling design).
The agency received several public comments expressing concern that significant laboratory capacity will be needed to support the full scope envisioned for UCMR 5 PFAS monitoring. EPA anticipates that sufficient laboratory capacity will exist to support the expanded UCMR 5 scope. EPA's experience over the first four cycles of UCMR implementation has been that laboratory capacity quickly grows to meet UCMR demand. EPA also notes that the number of laboratories successfully participating in the early stages of the UCMR 5 laboratory approval program is a good indicator that there will be a robust national network of laboratories experienced in PFAS drinking water analysis.
By early 2022, EPA will notify all small CWSs and NTNCWSs serving between 3,300 and 10,000 people of their anticipated requirement to monitor, which EPA expects to confirm and schedule by July 1 preceding each collection year based on the availability of appropriations. The nationally representative sample of smaller PWSs described in Section I.A of this preamble will be similarly notified and advised of their schedules.
This final rule addresses the requirements of the NDAA by including all 29 PFAS that are within the scope of EPA Methods 533 and 537.1. Both of these methods have been validated by EPA for drinking water analysis.
C. Economic Analysis
1. What is the estimated cost of this action?
EPA estimates the total average national cost of this action would be $21 million per year over the 5-year effective period of the final rule (2022-2026) assuming EPA collects information from all systems serving between 3,300 and 10,000 people. All of these costs are associated with paperwork burden under the Paperwork Reduction Act (PRA). EPA discusses the expected costs as well as documents the assumptions and data sources used in the preparation of this estimate in the “Information Collection Request for the Final Unregulated Contaminant Monitoring Rule (UCMR 5)” (USEPA, 2021b). Costs are incurred by large PWSs (for sampling and analysis); small PWSs (for sampling); state regulatory agencies ( i.e., those who volunteer to assist EPA with oversight and implementation support); and EPA (for regulatory support and oversight activities, and analytical and shipping costs for samples from small PWSs). These costs are also summarized in Exhibit 1 of this preamble. EPA's estimates are based on executing the full monitoring plan for small systems ( i.e., including all systems serving 3,300 to 10,000 people and a representative group of 800 smaller systems). As such, those estimates represent an upper bound. If EPA does not receive the necessary appropriations in one or more of the collections years—and thus collects data from fewer small systems—the actual costs would be lower than those estimated here.
EPA received several comments on the cost of monitoring. EPA has accounted for the cost/burden associated with all of the PWS activities as part of the comprehensive cost/burden estimates. In order to provide the most accurate and updated cost estimate, EPA re-examined labor burden estimates for states, EPA, and PWS activities and updated costs of laboratory services for sample analysis, based on consultations with national drinking water laboratories, when developing this final rule.
The costs for a particular UCMR cycle are heavily influenced by the selection of contaminants and associated analytical methods. EPA identified three EPA-developed analytical methods (and, in the case of lithium, multiple optional alternative methods) to analyze samples for UCMR 5 contaminants. EPA's estimate of the UCMR 5 analytical cost is $740 per sample set ( i.e., $740 to analyze a set of samples from one sample point and one sample event for the 30 UCMR 5 contaminants).
Exhibit 1 of this preamble details the EPA-estimated annual average national costs (accounting for labor and non-labor expenses). Laboratory analysis and sample shipping account for approximately 65 percent of the estimated total national cost for the implementation of UCMR 5. EPA estimated laboratory costs based on consultations with multiple commercial drinking water testing laboratories. EPA's cost estimates for the laboratory methods include shipping and analysis.
EPA expects that states will incur modest labor costs associated with voluntary assistance with the implementation of UCMR 5. EPA estimated state costs using the relevant assumptions from the State Resource Model developed by the Association of State Drinking Water Administrators (ASDWA) (ASDWA, 2013) to help states forecast resource needs. Model estimates were adjusted to account for actual levels of state participation under UCMR 4. State assistance with EPA's implementation of UCMR 5 is voluntary; thus, the level of effort is expected to vary among states and will depend on their individual agreements with EPA.
EPA assumes that one-third of the systems will collect samples during each of the three sample-collection years from January 2023 through December 2025.
Entity | Average annual cost (million) (2022-2026) 2 |
---|---|
1 Based on the scope of small-system monitoring described in AWIA. | |
2 Totals may not equal the sum of components due to rounding. | |
3 Labor costs pertain to PWSs, states, and EPA. Costs include activities such as reading the final rule, notifying systems selected to participate, sample collection, data review, reporting, and record keeping. | |
4 Non-labor costs will be incurred primarily by EPA and by large and very large PWSs. They include the cost of shipping samples to laboratories for testing and the cost of the laboratory analyses. | |
5 For a typical UCMR program that involves the expanded scope prescribed by AWIA, EPA estimates an average annual cost to the agency of $17M/year (over a 5-year cycle) ($2M/year for the representative sample of 800 PWSs serving between 25 and 3,299 people and $15M/year for all PWSs serving between 3,300 and 10,000 people). The projected cost to EPA for UCMR 5 implementation is lower than for a typical UCMR program because of lower sample analysis expenses. Those lower expenses are a result of analytical method efficiencies ( i.e., being able to monitor for 30 chemicals with only three analytical methods). | |
Small PWSs (25-10,000), including labor 3 only (non-labor costs 4 paid for by EPA) | $0.3 |
Large PWSs (10,001-100,000), including labor and non-labor costs | 7.0 |
Very Large PWSs (100,001 and greater), including labor and non-labor costs | 2.2 |
States, including labor costs related to implementation coordination | 0.8 |
EPA, including labor for implementation and non-labor for small system testing | 5 10.5 |
Average Annual National Total | 20.8 |
Additional details regarding EPA's cost assumptions and estimates can be found in the Information Collection Request (ICR) (USEPA, 2021b), ICR Number 2040-0304, which presents estimated cost and labor hours for the 5-year UCMR 5 period of 2022-2026. Copies of the ICR may be obtained from the EPA public docket for this final rule under Docket ID No. EPA-HQ-OW-2020-0530.
2. What are the benefits of this action?
The public benefits from the information about whether or not unregulated contaminants are present in their drinking water. If contaminants are not found, consumer confidence in their drinking water should improve. If contaminants are found, related health effects may be avoided when subsequent actions, such as regulations, are implemented, reducing or eliminating those contaminants.
II. Public Participation
A. What meetings have been held in preparation for UCMR 5?
EPA held three public meetings on UCMR 5 over the period of 2018 through 2021. EPA held a meeting focused on drinking water methods for unregulated contaminants on June 6, 2018, in Cincinnati, Ohio. Representatives from state agencies, laboratories, PWSs, environmental organizations, and drinking water associations joined the meeting via webinar and in person. Meeting topics included an overview of regulatory process elements (including the Contaminant Candidate List (CCL), UCMR, and Regulatory Determination), and drinking water methods under development (see USEPA, 2018 for presentation materials). EPA held a second meeting on July 16, 2019, in Cincinnati, Ohio. Representatives from State agencies, Tribes, laboratories, PWSs, environmental organizations, and drinking water associations participated in the meeting via webinar and in person. Meeting topics included the impacts of AWIA, analytical methods and contaminants being considered by EPA, potential sampling design, and other possible aspects of the UCMR 5 approach (see USEPA, 2019a for meeting materials). EPA held two identical virtual meetings on April 6 and 7, 2021, during the public comment period for the proposed rule (see USEPA, 2021c for presentation materials). Topics included the proposed UCMR 5 monitoring requirements, analyte selection and rationale, analytical methods, the laboratory approval process, and ground water representative monitoring plans (GWRMPs). Representatives of state agencies, laboratories, PWSs, environmental organizations, and drinking water associations participated in the meeting via webinar. In Section II.B of this preamble, the agency is announcing additional meetings to be held in 2022, which will assist with implementation.
B. How do I participate in the upcoming meetings?
EPA will hold multiple virtual meetings during 2022 to discuss UCMR 5 implementation planning, data reporting using Safe Drinking Water Accession and Review System (SDWARS), and best practices for sample collection. Dates and times of the upcoming meetings will be posted on EPA's website at https://www.epa.gov/dwucmr/unregulated-contaminant-monitoring-rule-ucmr-meetings-and-materials. EPA anticipates hosting the meetings focused on implementation planning in spring 2022, and the SDWARS and sample-collection meetings in fall 2022. Stakeholders who have participated in past UCMR meetings and/or those who register to use SDWARS will receive notification of these events. Other interested stakeholders are also welcome to participate.
1. Meeting Participation
Those who wish to participate in the public meetings, via webinar, can find information on how to register at https://www.epa.gov/dwucmr/unregulated-contaminant-monitoring-rule-ucmr-meetings-and-materials. The number of webinar connections available for the meetings are limited and will be available on a first-come, first-served basis. If stakeholder interest results in exceeding the maximum number of available connections for participants in upcoming webinar offerings, EPA may schedule additional webinars, with dates and times posted on EPA's Unregulated Contaminant Monitoring Program Meetings and Materials web page at https://www.epa.gov/dwucmr/unregulated-contaminant-monitoring-rule-ucmr-meetings-and-materials.
2. Meeting Materials
EPA expects to send meeting materials by email to all registered participants prior to the meeting. The materials will be posted on EPA's website at https://www.epa.gov/dwucmr/unregulated-contaminant- monitoring-rule-ucmr-meetings-and-materials for people who do not participate in the webinar.
III. General Information
A. How are CCL, UCMR, Regulatory Determination process, and NCOD interrelated?
Under the 1996 amendments to SDWA, Congress established a multi-step, risk-based approach for determining which contaminants would become subject to drinking water standards. Under the first step, EPA is required to publish a CCL every five years that identifies contaminants that are not subject to any proposed or promulgated drinking water regulations, are known or anticipated to occur in PWSs, and may require future regulation under SDWA. EPA published the draft CCL 5 in the Federal Register on July 19, 2021 (86 FR 37948, July 19, 2021 (USEPA, 2021d)). Under the second step, EPA must require, every five years, monitoring of unregulated contaminants as described in this action. The third step requires EPA to determine, every five years, whether or not to regulate at least five contaminants from the CCL. Under Section 1412(b)(1)(A) of SDWA, EPA regulates a contaminant in drinking water if the Administrator determines that:
(1) The contaminant may have an adverse effect on the health of persons;
(2) The contaminant is known to occur or there is substantial likelihood that the contaminant will occur in PWSs with a frequency and at levels of public health concern; and
(3) In the sole judgment of the Administrator, regulation of such contaminant presents a meaningful opportunity for health risk reduction for persons served by PWSs.
For the contaminants that meet all three criteria, SDWA requires EPA to publish national primary drinking water regulations (NPDWRs). Information on the CCL and the regulatory determination process can be found at: https://www.epa.gov/ccl.
The data collected through the UCMR program are made available to the public through the National Contaminant Occurrence Database (NCOD) for drinking water. EPA developed the NCOD to satisfy requirements in SDWA Section 1445(g), to assemble and maintain a drinking water contaminant occurrence database for both regulated and unregulated contaminants in drinking water systems. NCOD houses data on unregulated contaminant occurrence; data from EPA's “Six-Year Review” of national drinking water regulations; and ambient and/or source water data. Section 1445(g)(3) of SDWA requires that EPA maintain UCMR data in the NCOD and use the data when evaluating the frequency and level of occurrence of contaminants in drinking water at a level of public health concern. UCMR results can be viewed by the public via NCOD ( https://www.epa.gov/sdwa/national-contaminant-occurrence-database-ncod ) or via the UCMR web page at: https://www.epa.gov/dwucmr.
B. What are the Consumer Confidence Reporting and Public Notice Reporting requirements for public water systems that are subject to UCMR?
In addition to reporting UCMR monitoring data to EPA, PWSs are responsible for presenting and addressing UCMR results in their annual Consumer Confidence Reports (CCRs) (40 CFR 141.153) and must address Public Notice (PN) requirements associated with UCMR (40 CFR 141.207). More details about the CCR and PN requirements can be viewed by the public at: https://www.epa.gov/ccr and https://www.epa.gov/dwreginfo/public-notification-rule, respectively.
C. What is the UCMR 5 timeline?
This final rule identifies a UCMR 5 sampling period of 2023 to 2025. Prior to 2023 EPA will coordinate laboratory approval, tentatively select representative small systems (USEPA, 2021a), organize Partnership Agreements, develop State Monitoring Plans (see Section III.D of this preamble), establish monitoring schedules and inventory, and conduct outreach and training. Exhibit 2 of this preamble illustrates the major activities that EPA expects will take place in preparation for and during the implementation of UCMR 5.
BILLING CODE 6560-50-P
BILLING CODE 6560-50-C
D. What is the role of “States” in UCMR?
UCMR is a direct implementation rule ( i.e., EPA has primary responsibility for its implementation) and state participation is voluntary. Under the previous UCMR cycles, specific activities that individual states agreed to carry out or assist with were identified and established exclusively through Partnership Agreements. Through Partnership Agreements, states can help EPA implement UCMR and help ensure that the UCMR data are of the highest quality possible to best support the agency decision making. Under UCMR 5, EPA will continue to use the Partnership Agreement process to determine and document the following: The process for review and revision of the State Monitoring Plans; replacing and updating PWS information, including inventory ( i.e., PWS identification codes (PWSID), facility identification code along with associated facility types and water source type, etc.); review of proposed GWRMPs; notification and instructions for systems; and compliance assistance. EPA recognizes that states often have the best information about their PWSs and encourages them to partner in the UCMR 5 program.
E. How did EPA consider Children's Environmental Health?
By monitoring for unregulated contaminants that may pose health risks via drinking water, UCMR furthers the protection of public health for all citizens, including children. Children consume more water per unit of body weight compared to adults. Moreover, formula-fed infants drink a large amount of water compared to their body weight; thus, children's exposure to contaminants in drinking water may present a disproportionate health risk (USEPA, 2011). The objective of UCMR 5 is to collect nationally representative drinking water occurrence data on unregulated contaminants for future regulatory consideration. Information on the prioritization process, as well as contaminant-specific information ( e.g., source, use, production, release, persistence, mobility, health effects, and occurrence), that EPA used to select the analyte list, is contained in “Information Compendium for Contaminants for the Final Unregulated Contaminant Monitoring Rule (UCMR 5)” (USEPA, 2021e), available in the UCMR 5 public docket.
Since this is a final rule to monitor for contaminants and not to reduce their presence in drinking water to an acceptable level, the rule does not concern environmental health or safety risks presenting a disproportionate risk to children that would be addressed by this action (See Section V.G Executive Order 13045 of this preamble). Therefore, Executive Order 13045 does not apply to UCMR. However, EPA's Policy on Evaluating Health Risks to Children, which ensures that the health of infants and children is explicitly considered in the agency's decision making, is applicable, see: https://www.epa.gov/children/epas-policy-evaluating-risk-children.
EPA considered children's health risks during the development of UCMR 5. This included considering public comments about candidate contaminant priorities. Many commenters supported the agency's inclusion of PFAS and lithium in UCMR 5. Some commenters requested that EPA consider children and infant health risks in its risk communication for UCMR 5.
Using quantitation data from multiple laboratories, EPA establishes statistically-based UCMR reporting levels the agency considers feasible for the national network of approved drinking water laboratories. EPA generally sets the reporting levels as low as is technologically practical for measurement by that national network of laboratories, even if that level is well below concentrations that are currently associated with known or suspected health effects. In doing so, EPA positions itself to better address contaminant risk information in the future, including that associated with unique risks to children.
F. How did EPA address Environmental Justice (EJ)?
EPA has concluded that this action is not subject to Executive Order 12898 because it does not establish an environmental health or safety standard (see Section V.J Executive Order 12898 of this preamble). EPA Administrator Regan issued a directive to all EPA staff to incorporate environmental justice (EJ) into the agency's work, including regulatory activities, such as integrating EJ considerations into the regulatory development processes and considering regulatory options to maximize benefits to communities that “continue to suffer from disproportionately high pollution levels and the resulting adverse health and environmental impacts.” In keeping with this directive, and consistent with AWIA, EPA will, subject to the availability of sufficient appropriations, expand UCMR 5 to include all PWSs serving between 3,300 and 10,000 people as described in Sections I.A.4 and IV.B of this preamble. If there are sufficient appropriations, the expansion in the number of participating PWSs will provide a more comprehensive assessment of contaminant occurrence data from small and rural communities, including disadvantaged communities.
By developing a national characterization of unregulated contaminants that may pose health risks via drinking water from PWSs, UCMR furthers the protection of public health for all citizens. If EPA receives the needed appropriations, the expansion in monitoring scope reflected in UCMR 5 ( i.e., including all PWSs serving 3,300 to 10,000 people) will better support state and regional analyses and determination of potential EJ-related issues that need to be addressed. EPA structured the UCMR 5 rulemaking process to allow for meaningful involvement and transparency. EPA organized public meetings and webinars to share information regarding the development and implementation of UCMR 5; consulted with Tribal governments; and convened a workgroup that included representatives from several states. EPA will support stakeholder interest in UCMR 5 results by making them publicly available, as described in Section III.A of this preamble, and by developing additional risk-communication materials to help individuals and communities understand the significance of contaminant occurrence.
EPA received multiple comments on environmental justice considerations. Commenters expressed support for the continued collection of U.S. Postal Service Zip Codes for each PWS's service area and requested that EPA provide multilingual UCMR materials. EPA will continue to collect Zip Codes for UCMR 5, as collected under UCMR 3 and UCMR 4, to support potential assessments of whether or not certain communities are disproportionately impacted by particular drinking water contaminants. EPA also intends to develop the sampling instructions, fact sheets, and data summaries in both English and Spanish.
G. How did EPA coordinate with Indian Tribal Governments?
EPA has concluded that this action has Tribal implications. However, it will neither impose substantial direct compliance costs on federally recognized Tribal governments, nor preempt Tribal law. (See section V.F Executive Order 13175 of this preamble).
EPA consulted with Tribal officials under the EPA Policy on Consultation and Coordination with Indian Tribes early in the process of developing this action to ensure meaningful and timely input into its development. EPA initiated the Tribal consultation and coordination process before proposing the rule by mailing a “Notification of Consultation and Coordination” letter on June 26, 2019, to the Tribal leadership of the then 573 federally recognized Tribes. The letter invited Tribal leaders and representatives of Tribal governments to participate in an August 6, 2019, UCMR 5 Tribal consultation and coordination informational meeting. Presentation topics included an overview of the UCMR program, potential approaches to monitoring and implementation for UCMR 5, and the UCMR 5 contaminants and analytical methods under consideration. After the presentation, EPA provided an opportunity for input and questions on the action. Eight representatives from five Tribes attended the August meeting. Tribal representatives asked clarifying questions regarding program costs to PWSs and changes in PWS participation per AWIA. EPA addressed the questions during the meeting. Following the meeting, EPA received and addressed one additional clarifying question from a Tribal representative during the Tribal consultation process. No other Tribal representatives submitted written comments during the UCMR 5 consultation comment period that ended September 1, 2019.
Prior to the August 2019 meeting, EPA provided additional opportunities for Tribal officials to provide meaningful and timely input into the development of the proposed rule. On July 10, 2019, EPA participated in a monthly conference call with the National Tribal Water Council (NTWC). EPA shared a brief summary of UCMR statutory requirements with the Council and highlighted the upcoming official Tribal meeting. EPA also invited Tribal leaders and representatives to participate in a public meeting, held on July 16, 2019, to discuss the development of the proposed rule. Representatives from six Tribes participated in the public meeting. Following the publication of the proposal, EPA advised the Indian Health Services of the 60-day public comment period to assist with facilitating additional Tribal comments on the proposed rule. EPA received no public comments from Tribal officials.
A complete summary of the consultation, titled, “Summary of the Tribal Coordination and Consultation Process for the Fifth Unregulated Contaminant Monitoring Rule (UCMR 5) Proposal,” is provided in the UCMR 5 public docket listed in the ADDRESSES section of this preamble.
H. How are laboratories approved for UCMR 5 analyses?
Consistent with prior UCMRs, this action maintains the requirement that PWSs use laboratories approved by EPA to analyze UCMR 5 samples. Interested laboratories are encouraged to apply for EPA approval as early as possible. The UCMR 5 laboratory approval process, which began with the publication of the UCMR 5 proposal, is designed to assess whether laboratories possess the required equipment and can meet laboratory-performance and data-reporting criteria described in this action.
EPA expects demand for laboratory support to increase significantly based on the greater number of PWSs expected to participate in UCMR 5. EPA anticipates that the number of participating small water systems will increase from the typical 800 to approximately 6,000 (see Exhibit 5 in Section IV.B of this preamble). In preparation for this increase, EPA will solicit proposals and award contracts to laboratories to support small system monitoring prior to the end of the proficiency testing (PT) program. As in previous UCMR programs, EPA expects that laboratories awarded contracts by EPA will be required to first be approved to perform all methods. The requirements for the laboratory approval process are described in steps 1 through 6 of the following paragraphs.
EPA will require laboratories seeking approval to: (1) Provide EPA with data documenting an initial demonstration of capability (IDC) as outlined in each method; (2) verify successful performance at or below the minimum reporting levels (MRLs) as specified in this action; (3) provide information about laboratory standard operating procedures (SOPs); and (4) participate in two EPA PT studies for the analytes of interest. Audits of laboratories may be conducted by EPA prior to and/or following approval, and maintaining approval is contingent on timely and accurate reporting. The “UCMR 5 Laboratory Approval Manual” (USEPA, 2021f), available in the UCMR 5 public docket, provides more specific guidance on EPA laboratory approval program and the specific method acceptance criteria. EPA has included sample-collection procedures that are specific to the methods in the “UCMR 5 Laboratory Manual,” and will address these procedures in our outreach to the PWSs that will be collecting samples.
The UCMR 5 laboratory approval program will provide an assessment of the ability of laboratories to perform analyses using the methods listed in 40 CFR 141.40(a)(3), Table 1 of this preamble. Laboratory participation in the program is voluntary. However, as in the previous UCMRs, EPA will require PWSs to exclusively use laboratories that have been approved under the program. EPA will post a list of approved UCMR 5 laboratories to https://www.epa.gov/dwucmr and will bring this to the attention of the PWSs in our outreach.
1. Request To Participate
Laboratories interested in the UCMR 5 laboratory approval program first email EPA at: UCMR_Lab_Approval@epa.gov to request registration materials. EPA began accepting requests beginning with the publication of the proposal in the Federal Register .
2. Registration
Laboratory applicants provide registration information that includes laboratory name, mailing address, shipping address, contact name, phone number, email address, and a list of the UCMR 5 methods for which the laboratory is seeking approval. This registration step provides EPA with the necessary contact information and ensures that each laboratory receives a customized application package.
3. Application Package
Laboratory applicants will complete and return a customized application package that includes the following: IDC data, including precision, accuracy, and results of MRL studies; information regarding analytical equipment and other materials; proof of current drinking water laboratory certification (for select compliance monitoring methods); method-specific SOPs; and example chromatograms for each method under review.
As a condition of receiving and maintaining approval, the laboratory must promptly post UCMR 5 monitoring results and quality control data that meet method criteria (on behalf of its PWS clients) to EPA's UCMR electronic data reporting system, SDWARS.
Based on the January 1, 2023 start for UCMR 5 sample collection, the deadline for a laboratory to submit the necessary registration and application information is August 1, 2022.
4. EPA's Review of Application Package
EPA will review the application packages and, if necessary, request follow-up information. Laboratories that successfully complete the application process become eligible to participate in the UCMR 5 PT program.
5. Proficiency Testing
A PT sample is a synthetic sample containing a concentration of an analyte or mixture of analytes that is known to EPA, but unknown to the laboratory. To be approved, a laboratory must meet specific acceptance criteria for the analysis of a UCMR 5 PT sample(s) for each analyte in each method, for which the laboratory is seeking approval. EPA offered three PT studies between publication of the proposed rule and final rule, and anticipates offering at least two additional studies. Interested laboratories must participate in and report data for at least two PT studies. This allows EPA to collect a robust dataset for PT results, and provides laboratories with extra analytical experience using UCMR 5 methods. Laboratories must pass a PT for every analyte in the method to be approved for that method and may participate in multiple PT studies in order to produce passing results for each analyte. EPA has taken this approach in UCMR 5, recognizing that EPA Method 533 contains 25 analytes. EPA does not expect to conduct additional PT studies after the start of PWS monitoring; however, EPA expects to conduct laboratory audits (remote and/or on-site) throughout the implementation of UCMR 5 on an as needed and/or random basis. Initial laboratory approval is contingent on successful completion of PT studies, which includes properly uploading the PT results to SDWARS. Continued laboratory approval is contingent on successful completion of the audit process and satisfactorily meeting all the other stated conditions.
6. Written EPA Approval
For laboratories that have already successfully completed steps 1 through 5, EPA sent the laboratory a notification letter listing the methods for which approval was “pending” ( i.e., pending promulgation of this final rule). Because no changes have been made to the final rule that impact the laboratory approval program, laboratories that received pending-approval letters will be notified of full approval without further action on their part. Approval actions for additional laboratories that successfully complete steps 1 through 5 will also be documented by EPA in writing.
I. What documents are being incorporated by reference?
The following methods are being incorporated by reference into this section for UCMR 5 monitoring. All method material is available for inspection electronically at https://www.regulations.gov (Docket ID No. EPA-HQ-OW-2020-0530), or from the sources listed for each method. The methods that may be used to support monitoring under this final rule are as follows:
1. Methods From the U.S. Environmental Protection Agency
The following methods are available at EPA's Docket No. EPA-HQ-OW-2020-0530.
(i) EPA Method 200.7 “Determination of Metals and Trace Elements in Water and Wastes by Inductively Coupled Plasma-Atomic Emission Spectrometry,” Revision 4.4, 1994. Available at https://www.epa.gov/esam/method-2007-determination-metals-and-trace-elements-water-and-wastes-inductively-coupled-plasma. This is an EPA method for the analysis of metals and trace elements in water by ICP-AES and may be used to measure lithium during UCMR 5. See also the discussion of non-EPA alternative methods for lithium in this section.
(ii) EPA Method 533 “Determination of Per- and Polyfluoroalkyl Substances in Drinking Water by Isotope Dilution Anion Exchange Solid Phase Extraction and Liquid Chromatography/Tandem Mass Spectrometry,” November 2019, EPA 815-B-19-020. Available at https://www.epa.gov/dwanalyticalmethods/analytical-methods-developed-epa-analysis-unregulated-contaminants. This is an EPA method for the analysis PFAS in drinking water using SPE and LC/MS/MS and is to be used to measure 25 PFAS during UCMR 5 (11Cl-PF3OUdS, 8:2 FTS, 4:2 FTS, 6:2 FTS, ADONA, 9Cl-PF3ONS, HFPO-DA (GenX), NFDHA, PFEESA, PFMPA, PFMBA, PFBS, PFBA, PFDA, PFDoA, PFHpS, PFHpA, PFHxS, PFHxA, PFNA, PFOS, PFOA, PFPeS, PFPeA, and PFUnA).
(iii) EPA Method 537.1 “Determination of Selected Per- and Polyfluorinated Alkyl Substances in Drinking Water by Solid Phase Extraction and Liquid Chromatography/Tandem Mass Spectrometry (LC/MS/MS),” Version 2.0, March 2020, EPA/600/R-20/006. Available at https://www.epa.gov/dwanalyticalmethods/analytical-methods-developed-epa-analysis-unregulated-contaminants. This is an EPA method for the analysis of PFAS in drinking water using SPE and LC/MS/MS and is to be used to measure four PFAS during UCMR 5 (NEtFOSAA, NMeFOSAA, PFTA, and PFTrDA).
2. Alternative Methods From American Public Health Association—Standard Methods (SM)
The following methods are from American Public Health—Standard Methods (SM), 800 I Street NW, Washington, DC 20001-3710.
(i) “Standard Methods for the Examination of Water & Wastewater,” 23rd edition (2017).
(a) SM 3120 B, “Metals by Plasma Emission Spectroscopy (2017): Inductively Coupled Plasma (ICP) Method.” This is a Standard Method for the analysis of metals in water and wastewater by emission spectroscopy using ICP and may be used for the analysis of lithium.
(ii) “Standard Methods Online,” approved 1999. Available for purchase at https://www.standardmethods.org.
(a) SM 3120 B, “Metals by Plasma Emission Spectroscopy: Inductively Coupled Plasma (ICP) Method, Standard Methods Online,” revised December 14, 2020. This is a Standard Method for the analysis of metals in water and wastewater by emission spectroscopy using ICP and may be used for the analysis of lithium.
3. Methods From ASTM International
The following methods are from ASTM International, 100 Barr Harbor Drive, West Conshohocken, PA 19428-2959.
(i) ASTM D1976-20, “Standard Test Method for Elements in Water by Inductively-Coupled Plasma Atomic Emission Spectroscopy,” approved May 1, 2020. Available for purchase at https://www.astm.org/Standards/D1976.htm. This is an ASTM method for the analysis of elements in water by ICP-AES and may be used to measure lithium.
IV. Description of Final Rule and Summary of Responses to Public Comments
EPA published “Revisions to the Unregulated Contaminant Monitoring Rule (UCMR 5) for Public Water Systems and Announcement of Public Meeting;” Proposed Rule, on March 11, 2021 (86 FR 13846, (USEPA, 2021g)). The UCMR 5 proposal identified three EPA analytical methods, and multiple alternative methods, to support water system monitoring for 30 UCMR 5 contaminants (29 PFAS and lithium) and detailed other potential changes relative to UCMR 4. Among the other changes reflected in the UCMR 5 proposal were the following: Requirement for water systems serving 3,300 to 10,000 people to monitor per AWIA requirements “subject to the availability of appropriations”; provisions for sampling frequency, timing, and locations; submission timeframe for GWRMPs; data reporting timeframes; and reporting requirements.
EPA received 75 sets of comments from 72 public commenters, including other federal agencies, state and local governments, utilities and utility stakeholder organizations, laboratories, academia, non-governmental organizations, and other interested stakeholders. After considering the comments, EPA developed the final UCMR 5 as described in Exhibit 3 of this preamble. Except as noted, the UCMR 5 final rule approach is consistent with the proposed rule. A track-changes version of the rule language, comparing UCMR 4 to UCMR 5, (“Revisions to 40 CFR 141.35 and 141.40” (USEPA, 2021h)), is included in the electronic docket listed in the ADDRESSES section of this preamble.
This section summarizes key aspects of this final rule and the associated comments received in response to the proposed rule. EPA has compiled all public comments and EPA's responses in the “Response to Comments on the Fifth Unregulated Contaminant Monitoring Rule (UCMR 5) Proposal,” (USEPA, 2021i), which can be found in the electronic docket listed in the ADDRESSES section of this preamble.
Number | Title | ||
---|---|---|---|
CFR rule section | Description of section | Corresponding preamble section | |
Number | Title | ||
40 CFR 141.40(a)(3) | Contaminants in UCMR 5 | Maintains proposed list of 29 PFAS and lithium for monitoring | IV.A |
40 CFR 141.35(d), 40 CFR 141.40(a)(2)(ii), and 40 CFR 141.40(a)(4)(ii) | Scope of UCMR 5 applicability | Revises the scope of UCMR 5 to reflect that small CWSs and NTNCWSs serving 25 to 10,000 people will monitor (consistent with AWIA), if they are notified by the agency | IV.B |
40 CFR 141.40(a)(i)(B) | Sampling frequency and timing | Maintains proposed sample frequency (four sample events for SW, two sample events for GW) | IV.C |
40 CFR 141.35(c)(3) | Sampling locations and Ground Water Representative Monitoring Plans (GWRMPs) | Maintains proposed flexibility for PWSs to submit a GWRMP proposal to EPA | IV.D |
40 CFR 141.35(c)(6)(ii) and 40 CFR 141.40(a)(5)(vi) | Reporting timeframe | Maintains proposed timeframe (“within 90 days from the sample collection date”) for laboratories to post and approve analytical results in EPA's electronic data reporting system (for review by the PWS). Maintains proposed timeframe (“30 days from when the laboratory posts the data to EPA's electronic data reporting system”) for PWSs to review, approve, and submit data to the state and EPA | IV.E |
40 CFR 141.35(e) | Reporting requirements | Removes one proposed data element, maintains 27 proposed data elements, and clarifies the use of state data | IV.F |
40 CFR 141.40(a)(3) | Minimum reporting levels (MRL) | Maintains proposed MRLs for contaminants | IV.G |
A. What contaminants must be monitored under UCMR 5?
1. This Final Rule
EPA is maintaining the proposed list of UCMR 5 contaminants and the methods associated with analyzing those contaminants (see Exhibit 4 of this preamble). Further information on the prioritization process, as well as contaminant-specific information ( e.g., source, use, production, release, persistence, mobility, health effects, and occurrence), that EPA used to select the analyte list, is contained in “Information Compendium for Contaminants for the Final Unregulated Contaminant Monitoring Rule (UCMR 5)” (USEPA, 2021e). This Information Compendium can be found in the electronic docket listed in the ADDRESSES section of this preamble.
1 EPA Method 533 (Solid phase extraction (SPE) liquid chromatography/tandem mass spectrometry (LC/MS/MS)) (USEPA, 2019b). | |
2 EPA Method 537.1 Version 2.0 (Solid phase extraction (SPE) liquid chromatography/tandem mass spectrometry (LC/MS/MS)) (USEPA, 2020). | |
3 EPA Method 200.7 (Inductively coupled plasma-atomic emission spectrometry (ICP-AES)) (USEPA, 1994). | |
4 Standard Methods (SM) 3120 B (SM, 2017) or SM 3120 B-99 (SM Online, 1999). | |
5 ASTM International (ASTM) D1976-20 (ASTM, 2020). | |
Twenty-five Per- and Polyfluoroalkyl Substances (PFAS) using EPA Method 533 (SPE LC/MS/MS): | |
11-chloroeicosafluoro-3-oxaundecane-1-sulfonic acid (11Cl-PF3OUdS) | perfluorodecanoic acid (PFDA). |
1H, 1H, 2H, 2H-perfluorodecane sulfonic acid (8:2 FTS) | perfluorododecanoic acid (PFDoA). |
1H, 1H, 2H, 2H-perfluorohexane sulfonic acid (4:2 FTS) | perfluoroheptanesulfonic acid (PFHpS). |
1H, 1H, 2H, 2H-perfluorooctane sulfonic acid (6:2 FTS) | perfluoroheptanoic acid (PFHpA). |
4,8-dioxa-3H-perfluorononanoic acid (ADONA) | perfluorohexanesulfonic acid (PFHxS). |
9-chlorohexadecafluoro-3-oxanone-1-sulfonic acid (9Cl-PF3ONS) | perfluorohexanoic acid (PFHxA). |
hexafluoropropylene oxide dimer acid (HFPO-DA) (GenX) | perfluorononanoic acid (PFNA). |
nonafluoro‐3,6‐dioxaheptanoic acid (NFDHA) | perfluorooctanesulfonic acid (PFOS). |
perfluoro (2‐ethoxyethane) sulfonic acid (PFEESA) | perfluorooctanoic acid (PFOA). |
perfluoro‐3‐methoxypropanoic acid (PFMPA) | perfluoropentanesulfonic acid (PFPeS). |
perfluoro‐4‐methoxybutanoic acid (PFMBA) | perfluoropentanoic acid (PFPeA). |
perfluorobutanesulfonic acid (PFBS) | perfluoroundecanoic acid (PFUnA). |
perfluorobutanoic acid (PFBA) | |
Four Per- and Polyfluoroalkyl Substances (PFAS) using EPA Method 537.1 (SPE LC/MS/MS): | |
n-ethyl perfluorooctanesulfonamidoacetic acid (NEtFOSAA) | perfluorotetradecanoic acid (PFTA). |
n-methyl perfluorooctanesulfonamidoacetic acid (NMeFOSAA) | perfluorotridecanoic acid (PFTrDA). |
One Metal/Pharmaceutical using EPA Method 200.7 (ICP-AES)or alternate SMor ASTM: | |
lithium |
2. Summary of Major Comments and EPA Responses
Those who expressed an opinion about the proposed UCMR 5 analytes were supportive of EPA's inclusion of the 29 PFAS and lithium. Commenters expressed mixed opinions on the consideration of additional contaminants, particularly “aggregate PFAS,” Legionella pneumophilia, haloacetonitriles, and 1,2,3-trichloropropane. The major comments and EPA responses regarding these contaminants are summarized in the discussion that follows.
a. Aggregate PFAS Measure
EPA received multiple comments encouraging the agency to validate and include a total organic fluorine (TOF) and/or total oxidizable precursors (TOP) technique in UCMR 5 as a screening tool to determine “total PFAS.” EPA also received comments expressing concern for the limitations of the analytical methodologies, including a lack of sensitivity and specificity for PFAS using TOF.
EPA has not identified a complete, validated, peer-reviewed aggregate PFAS method with the appropriate specificity and sensitivity to support UCMR 5 monitoring. EPA's Office of Water and Office of Research and Development are currently developing and evaluating methodologies for broader PFAS analysis in drinking water, however, the measurement approaches are subject to significant technical challenges. The sensitivity of TOF is currently in the low μg/L range, as opposed to the low ng/L range of interest required for PFAS analysis in drinking water. TOF is also not specific to PFAS. TOP, while focusing on PFAS, is limited to measuring compounds that can be detected by LC/MS/MS and the technique requires two LC/MS/MS analyses; one before oxidation and one after oxidation. EPA is evaluating the TOP approach to understand the degree to which certain precursors are oxidized, and subsequently measurable by LC/MS/MS, as well as the degree to which PFAS that were measured in the pre-oxidation sample are still measured post-oxidation.
EPA is also monitoring progress by commercial laboratories and academia. In 2020 and 2021, EPA contacted commercial laboratories that advertised TOF capability, and these laboratories indicated that they had not yet commercialized the TOF method (see Appendix 4 in “Response to Comments on the Fifth Unregulated Contaminant Monitoring Rule (UCMR 5) Proposal,” (USEPA, 2021i), which can be found in the electronic docket listed in the ADDRESSES section of this preamble). TOP has been more widely commercialized but is often used as an exploratory tool to estimate precursors.
In summary, there are still analytical challenges leading to uncertainties in the results using the TOF and TOP techniques. More research and method refinement are needed before a peer-reviewed validated method that meets UCMR quality control needs is available to address PFAS more broadly.
b. Legionella Pneumophila
Some comments supported EPA's proposal to not include Legionella pneumophila in UCMR 5, while others encouraged EPA to add it. EPA has decided not to include Legionella pneumophila in the final UCMR 5.
Under EPA's Surface Water Treatment Rule (SWTR), EPA established NPDWRs for Giardia, viruses, Legionella, turbidity and heterotrophic bacteria and set maximum contaminant level goals of zero for Giardia lamblia, viruses and Legionella pneumophila (54 FR 27486, June 29, 1989 (USEPA, 1989)). EPA is currently examining opportunities to enhance protection against Legionella pneumophila through revisions to the suite of Microbial and Disinfection Byproduct (MDBP) rules. In addition to the SWTR, the MDBP suite includes the Stage 1 and Stage 2 Disinfectants and Disinfection Byproduct Rules; the Interim Enhanced Surface Water Treatment Rule; and the Long Term 1 Enhanced Surface Water Treatment Rule.
As stated in the conclusions from EPA's third “Six-Year Review of Drinking Water Standards” (82 FR 3518, January 11, 2017 (USEPA, 2017)), “EPA identified the following NPDWRs under the SWTR as candidates for revision, because of the opportunity to further reduce residual risk from pathogens (including opportunistic pathogens such as Legionella ) beyond the risk addressed by the current SWTR.” In accordance with the dates in the Settlement Agreement between EPA and Waterkeeper Alliance ( Waterkeeper Alliance, Inc. v. U.S. EPA, No. 1:19-cv-00899-LJL (S.D.N.Y. Jun. 1, 2020)), the agency anticipates signing a proposal for revisions to the MDBP rules and a final action on the proposal by July 31, 2024 and September 30, 2027, respectively. EPA has concluded that UCMR 5 data collection for Legionella pneumophila would not be completed in time to meaningfully inform MDBP revision and that UCMR 5 data for Legionella pneumophila would soon lack significance because it would not reflect conditions in water systems after any regulatory revisions become effective (because water quality would be expected to change as a result of PWSs complying with such regulatory revisions).
EPA estimates that Legionella pneumophila monitoring under UCMR 5 would have added $10.5 million in new expenses for large PWSs, $20 million in new expenses for the agency for small system monitoring, and $0.5 million in new expenses for small PWSs and states over the 5-year UCMR period. Because the data would not be available in time to inform MDBP regulatory revisions and because MDBP revisions could change the presence of Legionella pneumophila in drinking water distribution systems ( Legionella occurrence may change, for example, if the required minimum disinfectant residual concentration is higher following MDBP revisions), EPA concluded that the expense of this monitoring is not warranted given the limited utility of the data.
c. Haloacetonitriles
Some commenters agreed with EPA's rationale for not including the four unregulated haloacetonitrile disinfection byproducts (DBPs) in UCMR 5, while others encouraged EPA to include them. EPA has decided not to include haloacetonitrile DBPs in the final UCMR 5.
As was the case with Legionella pneumophila, EPA has concluded that UCMR 5 data collection for haloacetonitriles would not be completed in time to meaningfully inform MDBP revision and that UCMR 5 data would not reflect conditions in water systems after any regulatory revisions become effective (haloacetonitrile occurrence may change, for example, if the required minimum disinfectant residual concentration is higher following MDBP revisions).
As with Legionella pneumophila, inclusion of haloacetonitriles in UCMR 5 would introduce significant monitoring and reporting complexity and cost compared to the sampling design for PFAS and lithium. If haloacetonitriles were to be added to UCMR 5, most of the additional expenses would be borne by large PWSs (for analysis of their samples) and EPA (for analysis of samples from small PWSs). EPA estimates this would result in $13 million in new expenses for large PWSs, $19 million in new expenses for the agency, and $0.5 million in new expenses for small PWSs and states over the 5-year UCMR period.
Because the data would not be available in time to inform MDBP regulatory revisions and because MDBP revisions could change the presence of haloacetonitriles in drinking water distribution systems, EPA concluded that the expense of this monitoring is not warranted given the limited utility of the data.
d. 1,2,3-Trichloropropane
EPA received some comments that support the agency's proposed decision to not include 1,2,3-trichloropropane (1,2,3-TCP) monitoring in UCMR 5, and others recommending that 1,2,3-TCP be included. EPA concluded that appropriate analytical methods are not currently available to support additional UCMR data collection ( i.e., above and beyond the data collection under UCMR 3 (USEPA, 2019c)).
Several commenters suggested that EPA consider analytical methods to monitor for 1,2,3-trichloropropane at lower levels. They suggested, for example, that the agency use California method SRL-524M (California DHS, 2002), which is prescribed by the state for compliance monitoring at 0.005 μg/L (5 ng/L). EPA has reviewed SRL 524M and determined that the associated quality control (QC) and IDC criteria do not meet the EPA's needs for drinking water analysis. See also EPA's “Response to Comments on the Fifth Unregulated Contaminant Monitoring Rule (UCMR 5) Proposal,” (USEPA, 2021i), which can be found in the electronic docket listed in the ADDRESSES section of this preamble.
Occurrence data collected during UCMR 3 (77 FR 26072, May 2, 2012 (USEPA, 2012)) for 1,2,3-trichloropropane may be found at https://www.epa.gov/dwucmr/occurrence-data-unregulated-contaminant-monitoring-rule#3.
B. What is the UCMR 5 sampling design?
1. This Final Rule
EPA has utilized up to three different tiers of contaminant monitoring, associated with three different “lists” of contaminants, in past UCMRs. EPA designed the monitoring tiers to reflect the availability and complexity of analytical methods, laboratory capacity, sampling frequency, and cost. The Assessment Monitoring tier is the largest in scope and is used to collect data to determine the national occurrence of “List 1” contaminants for the purpose of estimating national population exposure. Assessment Monitoring has been used in the four previous UCMRs to collect occurrence data from all systems serving more than 10,000 people and a representative sample of 800 smaller systems. Consistent with AWIA, the Assessment Monitoring approach was redesigned for UCMR 5 and reflects the plan, subject to additional appropriations being made available for this purpose, that would require all systems serving 3,300 or more people and a representative sample of systems serving 25 to 3,299 people to perform monitoring (USEPA, 2021a). The population-weighted sampling design for the nationally representative sample of small systems (used in previous UCMR cycles to select 800 systems serving 25 to 10,000 people and used in UCMR 5 to select 800 systems serving 25 to 3,299 people) calls for the sample to be stratified by water source type (ground water or surface water), service size category, and state (where each state is allocated a minimum of two systems in its State Monitoring Plan). The allowable margin of error at the 99 percent confidence level is ±1 percent for an expected contaminant occurrence of 1 percent at the national level. Assessment Monitoring is the primary tier used for contaminants and generally relies on analytical methods that use more common techniques that are expected to be widely available. EPA has used an Assessment Monitoring tier for 72 contaminants and contaminant groups over the course of UCMR 1 through UCMR 4. The agency is exclusively requiring Assessment Monitoring in UCMR 5. This monitoring approach yields the most complete set of occurrence data to support EPA's decision making.
2. Summary of Major Comments and EPA Responses
Many commenters expressed support for the increase in small system Assessment Monitoring, with no opposition to the inclusion of all PWSs serving 3,300 to 10,000 people in UCMR 5. The U.S. Small Business Administration asked that EPA clarify small-system responsibilities in the event of inadequate EPA funding to fully support the envisioned monitoring.
Recognizing the uncertainty in funding from year-to-year, the agency will implement a “monitor if notified” approach for PWSs serving 25 to 10,000 people. In 2022, EPA will notify the approximately 6,000 small PWSs tentatively selected for the expanded UCMR 5 (all PWSs serving 3,300 to 10,000 people and a statistically-based, nationally representative set of 800 PWSs serving 25 to 3,299 people) of their anticipated UCMR 5 monitoring requirements; that initial notification will specify that monitoring is conditioned on EPA having sufficient funds and will be confirmed in a second notification. Upon receiving appropriations for a particular year, EPA will determine the number of small PWSs whose monitoring is covered by the appropriations, and notify the included small PWSs of their upcoming requirements at least six months prior to their scheduled monitoring. EPA has made minor edits to 40 CFR 141.35 and 40 CFR 141.40 for consistency with this approach.
Additionally, to ensure that EPA has access to a nationally representative set of small-system data, even in the absence of sufficient appropriations to support the planned monitoring by small systems, a statistically-based nationally representative set of 800 PWSs will also be selected from among the PWSs serving 25 to 10,000 people. An updated description of the statistical approach for the nationally representative samples for UCMR 5 is available in the docket as “Selection of Nationally Representative Public Water Systems for the Unregulated Contaminant Monitoring Rule: 2021 Update” (USEPA 2021a).
To minimize the impact of the final rule on small systems (those serving 25 to 10,000 people), EPA pays for their sample kit preparation, sample shipping fees, and sample analysis. Large systems (those serving more than 10,000 people) pay for all costs associated with their monitoring. Exhibit 5 of this preamble shows a summary of the estimated number of PWSs subject to monitoring.
List 1 chemicals | ||
---|---|---|
1 EPA pays for all analytical costs associated with monitoring at small systems. | ||
2 Counts for small PWSs serving 3,300-10,000 people are approximate. | ||
3 Large system counts are approximate. | ||
4 In the absence of appropriations to support monitoring at all PWSs serving 3,300 to 10,000 people, EPA could instead include as few as 400 PWSs serving 25 to 3,299 people and 400 PWSs serving 3,300 to 10,000 people (for a representative sample of 800 PWSs serving 25 to 10,000 people). | ||
System size (number of people served) | National sample: Assessment monitoring design | Total number of systems per size category |
List 1 chemicals | ||
Small Systems1 (25-3,299) | 800 randomly selected systems (CWSs and NTNCWSs) | 4 800 |
Small Systems12 (3,300-10,000) | All systems (CWSs and NTNCWSs) subject to the availability of appropriations | 4 5,147 |
Large Systems3 (10,001 and over) | All systems (CWSs and NTNCWSs) | 4,364 |
Total | 10,311 |
C. What is the sampling frequency and timing?
1. This Final Rule
This final rule maintains the proposed sampling frequency and timeframe for Assessment Monitoring. On a per-system basis, the anticipated number of samples collected by each system is consistent with sample collection during prior UCMR cycles (although, as described elsewhere in this document, the number of water systems expected to participate in UCMR 5 is significantly greater under this final rule per AWIA). Water systems will be required to collect samples based on the typical UCMR sampling frequency and timeframe as follows: For surface water, ground water under the direct influence of surface water, and mixed locations, sampling will take place for four consecutive quarters over the course of 12 months (total of 4 sampling events). Sampling events will occur three months apart. For example, if the first sample is taken in January, the second will then occur anytime in April, the third will occur anytime in July, and the fourth will occur anytime in October. For ground water locations, sampling will take place twice over the course of 12 months (total of 2 sampling events). Sampling events will occur five to seven months apart. For example, if the first sample is taken in April, the second sample will then occur anytime in September, October, or November.
EPA, in conjunction with the states, will initially determine schedules (year and months of monitoring) for large water systems. Thereafter, large PWSs will have an opportunity to modify this initial schedule for planning purposes or other reasons ( e.g., to spread costs over multiple years, if a sampling location will be closed during the scheduled month of monitoring, etc.). EPA will schedule and coordinate small system monitoring (for PWSs serving 3,300 to 10,000 people and for the nationally representative sample of smaller PWSs) by working closely with partnering states. State Monitoring Plans provide an opportunity for states to review and revise the initial sampling schedules developed by EPA (see discussion of State Monitoring Plans in Section III.D of this preamble).
2. Summary of Major Comments and EPA Responses
EPA received two comments recommending that the agency reduce the sampling frequency for both ground water (GW) and surface water (SW) systems, including a suggestion that UCMR 5 require only one sample per system. EPA concluded that less frequent data collection would affect the integrity of the data and result in insufficient data to fulfill the needs envisioned by the 1996 SDWA Amendments, particularly with regard to supporting the Administrator's regulatory determinations and drinking water regulation development. Maintaining the proposed sampling frequency allows the resulting contaminant data to be analyzed for temporal variability, in addition to between-system variability. These analyses are not possible with a single-sample structure. When making regulatory determinations, EPA evaluates the number of systems (and populations) with means or single measured values above health levels of concern, as both values provide important information.
EPA acknowledges that based on UCMR 3 (77 FR 26072, May 2, 2012 (USEPA, 2012)) data, the correlation between results from multiple sample events can be high; however, the approach suggested by commenters would yield less accurate data for several reasons. EPA's assessment of sampling frequency using UCMR 3 and UCMR 4 data (see Appendix 2 in “Response to Comments on the Fifth Unregulated Contaminant Monitoring Rule (UCMR 5) Proposal,” (USEPA, 2021i), which can be found in the electronic docket listed in the ADDRESSES section of this preamble) shows that for both SW and GW systems, there are numerous cases where occurrence is notably different between sample events. Focusing first on UCMR 3 results for PWS with SW sources, the number of sample points at which PFOS was measured at or above the MRL was 108 percent greater when considering multiple sample events, versus only considering the first sample event. There were multiple occasions where the results from the first sample event were below the health-based reference concentration while subsequent results were above it. Looking at UCMR 3 results for PWSs with GW sources, PFOS was measured at or above the MRL at 26 percent more sample points in the second sample event relative to the first. Similar to the UCMR 3 results for SW systems, there were multiple occasions where the second result from a GW system exceeded the reference concentration while the first result did not.
Some commenters suggested that between-system variability is much greater for PFAS than within-system variability. While it may be less than between-system variability, within-system variability can still be important. Shifting to a single sample prevents reasonable assessments of within-system variability and limits the ability to observe between-system variability estimates. This would then drastically reduce the ability to characterize uncertainty.
Additionally, although the provisions of AWIA could include the addition of approximately 5,200 more PWSs to UCMR 5 relative to earlier cycles and thus capture more spatial variation in the resulting dataset, it is important to note that spatial variation is different than temporal or seasonal variation. Capturing more of one does not diminish the influence of the others on national occurrence data and reducing the frequency of sampling eliminates the possibility of analyzing the resulting data for temporal variation. In addition, statistical means based on two measurements have considerably less error than a single measurement per system, and provide a more robust dataset for future regulatory decisions. Having more than one sample event also greatly reduces the chance of underestimating the true proportion of occurrence of the contaminant in drinking water ( i.e., exposure).
Regarding monitoring frequency and burden, EPA notes that the agency allows large GW systems the opportunity to reduce monitoring burden by using approved representative entry points (40 CFR 141.35(c)(3)) as described in Section IV.D of this preamble. Representative monitoring plans will result in fewer samples and thus time and cost savings to the PWS. Consecutive systems with multiple connections from a particular wholesaler are also permitted to choose one entry point as representative, thus reducing burden.
D. Where are the sampling locations and what is representative monitoring?
1. This Final Rule
Consistent with past UCMR cycles, sample collection for UCMR 5 contaminants will take place at the entry point to the distribution system (EPTDS). As during past UCMRs and as described in 40 CFR 141.35(c)(3) of this preamble, this final rule will allow large ground water systems (or large surface water systems with ground water sources) that have multiple ground water EPTDSs to request approval to sample at representative monitoring locations rather than at each ground water EPTDS. GWRMPs approved under prior UCMRs may be used for UCMR 5, presuming no significant changes in the configuration of the ground water EPTDSs since the prior approval. Water systems that intend to use a previously approved plan must send EPA a copy of the approval documents received under prior UCMRs from their state (if reviewed by the state) or EPA.
Relative to the rules for prior UCMR cycles, this final rule provides greater flexibility to PWSs in submitting GWRMPs to EPA. Plans must be submitted to EPA six months prior to the PWS's scheduled sample collection, instead of by a specified date; those PWSs scheduled to collect samples in 2024 or 2025 will have significant additional time to develop and propose representative plans. PWSs, particularly those scheduled for sample collection in 2023, are encouraged to submit proposals for a new GWRMP by December 31, 2022, to allow time for review by EPA and, as appropriate, the state. EPA will work closely with the states to coordinate the review of GWRMPs in those cases where such review is part of the state's Partnership Agreement. Changes to inventory data in SDWARS that impact a PWS's representative plan before or during the UCMR sampling period must be reported within 30 days of the change. EPA will collaborate with small systems (particularly those with many ground water locations) to develop a GWRMP when warranted, recognizing that EPA pays for the analysis of samples from small systems.
2. Summary of Major Comments and EPA Responses
EPA received multiple comments regarding GWRMPs and representative sampling for wholesale systems and consecutive connections. Generally, commenters supported the continued use of GWRMPS and the use of previously approved monitoring plans. An additional supporting document, titled, “Instructions for Preparing a Ground Water Representative Monitoring Plan for the Unregulated Contaminant Monitoring Rule,” (USEPA, 2021j) has been placed in the electronic docket listed in the ADDRESSES section of this preamble.
Several commenters recommended that EPA not require monitoring by consecutive systems that purchase 100 percent of their water from wholesale systems that are already subject to UCMR 5 monitoring. They requested that EPA instead require wholesalers to identify the PWSIDs of consecutive systems receiving water from the wholesaler, and that EPA rely on wholesaler monitoring in lieu of monitoring by the consecutive systems. EPA has decided to require monitoring by consecutive systems to conduct monitoring in accordance with UCMR 5. Previous UCMR data demonstrate that wholesalers and purchasers can have different analytical results (see Appendix 3 in “Response to Comments on the Fifth Unregulated Contaminant Monitoring Rule (UCMR 5) Proposal,” (USEPA, 2021i), which can be found in the electronic docket listed in the ADDRESSES section of this preamble). For example, pairing the results from wholesaler to consecutive connections for 190 manganese results from UCMR 4 (81 FR 92666, December 20, 2016 (USEPA, 2016)), one-third of the results are higher at the wholesaler and one-third of the results are higher at the consecutive connection, with one-third of all results being comparable [±0.4 μg/L]. The agency therefore elected to maintain the proposed approach in which all eligible consecutive systems must monitor, irrespective of monitoring being conducted by the wholesale system from which they purchase drinking water.
E. How long do laboratories and PWSs have to report data?
1. This Final Rule
EPA is maintaining the revised reporting timeframes for laboratories and PWSs as proposed. For UCMR 5, laboratories have 90 days (versus 120 days in prior UCMR cycles) from the sample collection date to post and approve analytical results in SDWARS for PWS review. Large PWSs have 30 days (versus 60 days in prior UCMR cycles) to review and approve the analytical results posted to SDWARS. As with the UCMR 4 requirements, data will be considered approved and available for state and EPA review if the PWS takes no action within their allotted review period.
In the proposed rule for UCMR 5, EPA noted that multiple states have expressed an interest in earlier access to UCMR data (see Docket ID No. EPA-HQ-OW-2020-0530). EPA believes that the shorter timeframes for posting and approving data are feasible and reasonable based on our experience with UCMR reporting to date.
2. Summary of Major Comments and EPA Responses
Commenters generally agreed with the revised timeframes for laboratories to post and approve analytical results in SDWARS. The 90-day laboratory timeframe makes UCMR results more readily available to interested stakeholders and states. Some commenters supported the timely reporting of data by laboratories to ensure that PWSs have adequate time to reconcile QC issues, especially those that may require a PWS to resample. Some expressed concerns that the revised timeframe could be challenging for laboratories. Some suggested that the shorter timeframe be conditioned on consistent functionality and availability of SDWARS.
Commenters generally agreed with the changes in the timeframes for large PWSs to review and approve analytical results posted to SDWARS, though several requested that EPA maintain the 60-day review period.
EPA has observed that many laboratories are routinely posting data to SDWARS within 90 days of sample collection and that many large PWSs are approving and submitting data within 30 days of their laboratory posting the data. Judging by reporting for 2020 monitoring under UCMR 4 (81 FR 92666, December 20, 2016 (USEPA, 2016)), more than 75 percent of laboratories posted and approved data within 90 days, and more than 85 percent of large PWSs who chose to act on their data, did so within 30 days of the laboratory posting it. During UCMR 3 and UCMR 4, less than half of large PWSs chose to actively review and approve their data, as opposed to letting the results default to “approved” status after the review period. The many large PWSs that have routinely chosen to not review and approve their data will not be impacted by the revised timeframe for PWS data review for UCMR 5. See also Appendix 5 in “Response to Comments on the Fifth Unregulated Contaminant Monitoring Rule (UCMR 5) Proposal,” (USEPA, 2021i), which can be found in the electronic docket listed in the ADDRESSES section of this preamble.
EPA does not anticipate functionality or availability issues with SDWARS during UCMR 5 but is prepared to make case-by-case exceptions for reporting timeframes should significant issues occur with the reporting system.
F. What are the reporting requirements for UCMR 5?
1. This Final Rule
Today's final rule removes 1 of the proposed data elements (“Direct Potable Reuse Water Information”) and maintains the 27 others described in the proposed rule. EPA has updated some of the data-element definitions for clarity and consistency in the reporting requirements. Please see Table 1 of 40 CFR 141.35(e) of this preamble for the complete list of data elements, definitions and drop-down options that will be provided in the data reporting system.
2. Summary of Major Comments and EPA Responses
a. Data Elements
EPA received multiple comments on the proposed contaminant-specific data elements, with some commenters questioning the quality, reliability, and utility of some of the data that would be provided to the agency per the proposed data element requirements. Several commenters requested that EPA include rationale explaining the intended use of such data. EPA has updated the data elements for clarity ( e.g., clarifying treatment types, and abbreviations for them; adding the treatment option “NMT = not modified after testing”) and has provided additional rationale (including describing how the information could impact regulatory decision making and risk-management strategies) in the “Response to Comments on the Fifth Unregulated Contaminant Monitoring Rule (UCMR 5) Proposal,” (USEPA, 2021i), available in the UCMR 5 public docket (see the ADDRESSES section of this preamble). EPA acknowledges the data collected will have some limitations but believes that the collection of the information is still valuable. In addition, EPA notes the modest burden associated with the collection.
b. Reporting State Data
EPA received several comments suggesting that PWSs be permitted to submit occurrence data collected under state-based monitoring, in lieu of conducting UCMR 5 monitoring, to reduce the monitoring burden. In those cases where the monitoring required by a state is aligned with the requirements of UCMR 5, PWSs may be able to conduct PFAS monitoring that meets the needs of their state and UCMR 5, with the understanding that UCMR 5 requirements must be met. This includes the requirement that PFAS samples be analyzed by a UCMR 5-approved laboratory using EPA Method 533 and Method 537.1. EPA offers flexibility for PWSs to reschedule their UCMR 5 monitoring, and PWSs may do so to coordinate it with their state-required monitoring. PWSs wishing to conduct “dual purpose” monitoring ( i.e., concurrently meeting the state and UCMR 5 needs) may contact their state or EPA, as appropriate, if there are questions about whether the state and UCMR 5 requirements are being met.
G. What are the UCMR 5 Minimum Reporting Levels (MRLs) and how were they determined?
1. This Final Rule
EPA is maintaining the proposed minimum reporting levels for the UCMR 5 contaminants. EPA establishes MRLs to ensure consistency in the quality of the information reported to the agency. As defined in 40 CFR 141.40(a)(5)(iii) of this preamble, the MRL is the minimum quantitation level that, with 95 percent confidence, can be achieved by capable analysts at 75 percent or more of the laboratories using a specified analytical method. More detailed explanation of the MRL calculation is in the “Technical Basis for the Lowest Concentration Minimum Reporting Level (LCMRL) Calculator” (USEPA, 2010), available at ( https://www.epa.gov/dwanalyticalmethods/lowest-concentration-minimum-reporting-level-lcmrl-calculator ).
EPA requires each laboratory interested in supporting UCMR analyses to demonstrate that they can reliably make quality measurements at or below the established MRL to ensure that high quality results are being reported by participating laboratories. EPA established the proposed MRLs in 40 CFR 141.40(a)(3), Table 1 of this preamble, for each analyte/method by obtaining data from at least three laboratories that performed “lowest concentration minimum reporting level” (LCMRL) studies. The results from these laboratory LCMRL studies can be found in the “UCMR 5 Laboratory Approval Manual” (USEPA, 2021f), available in the electronic docket (see the ADDRESSES section of this preamble).
The multiple laboratory LCMRLs were then processed through a statistical routine to derive an MRL that, with 95 percent confidence, is predicted to be attainable by 75 percent of laboratories using the prescribed method. EPA considers these to be the lowest reporting levels that can practically and consistently be achieved on a national basis (recognizing that individual laboratories may be able to measure at lower levels).
2. Summary of Major Comments and EPA Responses
Some commenters recommended that EPA establish lower MRLs for the 29 PFAS in UCMR 5. MRLs used for the UCMR program are based on calculations that account for the ability of laboratories to report accurate and precise measurements with a specific statistical confidence. Based on the results from multiple laboratories that participated in MRL-setting studies, EPA concluded that the proposed MRLs represent the lowest feasible levels for a national MRL measure. Sensitivity ( i.e., quantitation limit) may improve with time, experience, and instrumentation advances.
H. What are the requirements for laboratory analysis of field reagent blank samples?
1. This Final Rule
EPA initially proposed that laboratories analyze all field reagent blank (FRB) samples, along with the corresponding field samples, to reduce the possibility of invalidating a positive field sample result ( i.e., a field sample result at or above the MRL) because of FRB hold times being exceeded.
2. Summary of Major Comments and EPA Responses
EPA did not receive any comments expressing concerns with the laboratory approval process; however, the agency did receive a comment on the FRB sample analysis criteria, suggesting that the agency not require analysis of every FRB sample. EPA Method 537.1 and Method 533, used for PFAS analysis, require collection of a corresponding FRB sample from each unique sampling location for each sampling event. The methods require that the FRB be analyzed if there is a positive result for a PFAS analyte in a corresponding field sample. Based on further consideration, EPA is now providing laboratories with discretion as to whether they analyze every FRB sample proactively or only those associated with positive field sample results. This is with the understanding that laboratories must analyze field samples promptly enough such that the corresponding FRB analyses, if needed, may be completed within the prescribed hold time. Compliance with the method hold-time requirements, and other provisions of the methods, is a condition of maintaining laboratory approval. EPA is studying the possibility of extending the FRB hold times for EPA Method 537.1 and Method 533, and will communicate the results of the studies with the approved laboratories.
I. How will EPA support risk communication for UCMR 5 results?
EPA received comments requesting that the agency develop and provide risk communication materials to support interpretation and characterization of UCMR 5 results. EPA intends to publish a “reference concentration” summary document with available EPA health values; provide a template for PWSs to consider using in communicating with their customers about the detection of PFAS in drinking water; and provide other supporting material as risk-related information becomes available.
V. Statutory and Executive Order Reviews
Additional information about these statutes and Executive Orders can be found at http://www2.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 a significant regulatory action that was submitted to the Office of Management and Budget (OMB) for review. Any changes made in response to OMB recommendations have been documented in the docket. A full analysis of potential costs associated with this action, the “Information Collection Request for the Final Unregulated Contaminant Monitoring Rule (UCMR 5),” (USEPA, 2021b) ICR Number 2040-0304, is also available in the docket (Docket ID No. EPA-HQ-OW-2020-0530). A summary of the ICR can be found in Section I.C of this preamble.
B. Paperwork Reduction Act (PRA)
The information collection activities in this final rule have been submitted for approval to the Office of Management and Budget (OMB) under the PRA. The Information Collection Request (ICR) document (USEPA, 2021b) that EPA prepared has been assigned EPA ICR number ICR 2683.02. You can find a copy of the ICR in the docket for this final rule, and it is briefly summarized here. The information collection requirements are not enforceable until OMB approves them.
The information that EPA will collect under this final rule fulfills the statutory requirements of Section1445(a)(2) of SDWA, as amended in 1996, 2018, and 2019. The data will describe the source of the water, location, and test results for samples taken from public water systems (PWSs) as described in 40 CFR 141.35(e). The information collected will support EPA's decisions as to whether or not to regulate particular contaminants under SDWA. Reporting is mandatory. The data are not subject to confidentiality protection.
The 5-year UCMR 5 period spans 2022-2026. UCMR 5 sample collection begins in 2023 and continues through 2025. Since ICRs cannot be approved by OMB for a period longer than three years pursuant to 5 CFR 1320.10, the primary analysis in the ICR only covers the first three years of the UCMR 5 period ( i.e., 2022-2024). Prior to expiration of the initial UCMR 5 ICR, EPA will seek to extend the ICR and thus receive approval to collect information under the PRA in the remaining two years of the UCMR 5 period (2025-2026).
EPA received several comments regarding cost and burden of the proposed rule. Those comments recommended that EPA provide more accurate cost estimates. EPA's response is detailed more fully in the “Response to Comments on the Fifth Unregulated Contaminant Monitoring Rule (UCMR 5) Proposal,” (USEPA, 2021i), which can be found in the electronic docket listed in the ADDRESSES section of this preamble.
EPA has reviewed and, as appropriate, revised the cost and burden figures for UCMR 5; this includes using updated unit cost estimates for sample analysis. The annual burden and cost estimates described in this section are based on the implementation assumptions described in Section III of this preamble, among them the inclusion of all systems serving 3,300 to 10,000 people and a representative sample of smaller systems. As such, those estimates represent an upper bound. If EPA does not receive the necessary appropriations in one or more of the collections years—and thus collects data from fewer small systems—the actual costs would be lower than those estimated here. In general, burden hours were calculated by:
1. Determining the activities that PWSs and states would complete to comply with UCMR activity;
2. Estimating the number of hours per activity;
3. Estimating the number of respondents per activity; and
4. Multiplying the hours per activity by the number of respondents for that activity.
Respondents/affected entities: The respondents/affected entities are small PWSs (those serving 25 to 10,000 people); large PWSs (those serving 10,001 to 100,000 people); very large PWSs (those serving more than 100,000 people); and states.
Respondent's obligation to respond: Mandatory (40 CFR 141.35).
Estimated number of respondents: Respondents to UCMR 5 include 5,947 small PWSs, 4,364 large PWSs, and the 56 primacy agencies (50 States, one Tribal nation, and five Territories) for a total of 10,367 respondents.
Frequency of response: The frequency of response varies across respondents and years. Across the initial 3-year ICR period for UCMR 5, small PWSs will sample an average of 2.8 times per PWS ( i.e., number of responses per PWS); large PWSs will sample and report an average of 3.2 times per PWS; and very large PWSs will sample and report an average of 3.7 times per PWS.
Total estimated burden: 48,469 hours (per year). Burden is defined at 5 CFR 1320.3(b).
Total estimated cost: $9,404,007 annualized capital or operation & maintenance costs.
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number. The OMB control numbers for the EPA's regulations in 40 CFR are listed in 40 CFR part 9. When OMB approves this ICR, the agency will announce that approval in the Federal Register and publish a technical amendment to 40 CFR part 9 to display the OMB control number for the approved information collection activities contained in this final rule.
C. Regulatory Flexibility Act (RFA)
For purposes of assessing the impacts of this final rule on small entities, EPA considered small entities to be PWSs serving 25 to 10,000 people. As required by the RFA, EPA proposed using this alternative definition in the Federal Register (63 FR 7606, February 13, 1998 (USEPA, 1998a)), sought public comment, consulted with the Small Business Administration (SBA) Office of Advocacy, and finalized the alternative definition in the Consumer Confidence Reports rulemaking (63 FR 44512, August 19, 1998 (USEPA, 1998b)). As stated in that document, the alternative definition applies to this regulation.
1 In the absence of appropriations to support monitoring at all PWSs serving 3,300 to 10,000 people, EPA could instead include as few as 400 PWSs serving 25 to 3,299 people and 400 PWSs serving 3,300 to 10,000 people (for a representative sample of 800 PWSs serving 25 to 10,000 people). | |||
2 PWS counts were adjusted to display as whole numbers in each size category. | |||
System size (number of people served) | Publicly-owned | Privately-owned | Total 2 |
Ground Water | |||
500 and under | 42 | 126 | 168 |
501 to 3,300 | 320 | 121 | 441 |
3,301 to 10,000 | 2,334 | 541 | 2,875 |
Subtotal Ground Water | 2,696 | 788 | 3,484 |
Surface Water (and Ground Water Under the Direct Influence of Surface Water) | |||
500 and under | 9 | 11 | 20 |
501 to 3,300 | 126 | 45 | 171 |
3,301 to 10,000 | 1,762 | 510 | 2,272 |
Subtotal Surface Water | 1,897 | 566 | 2,463 |
Total of Small Water Systems | 4,593 | 1,354 | 5,947 |
The basis for the UCMR 5 RFA certification is as follows: For the 5,947 small water systems that EPA anticipates will be affected, per the planned monitoring, the average annual cost for complying with this final rule represents an average of 0.02 percent of system revenues. The average yearly cost to small systems to comply with UCMR 5 over the 5-year period of 2022-2026, is approximately $0.3 million. EPA anticipates that approximately one third of the 5,947 small PWSs will collect samples in each of three years (2023, 2024, and 2025).
PWS costs are attributed to the labor required for reading about UCMR 5 requirements, monitoring, reporting, and record keeping. The estimated average annual burden across the 5-year UCMR 5 implementation period of 2022-2026 is 1.3 hours at $52 per small system. By assuming all costs for laboratory analyses, shipping and quality control for small entities, EPA incurs the entirety of the non-labor costs associated with UCMR 5 small system monitoring, or 96 percent of total small system testing costs. Exhibit 7 and Exhibit 8 of this preamble present the estimated economic impacts in the form of a revenue test for publicly- and privately-owned systems.
System size (number of people served) | Annual number of systems impacted 2 | Average annual hours per system | Average annual cost per system | SBREFA criteria- revenue test 3 (%) |
---|---|---|---|---|
1 In the absence of appropriations to support monitoring at all PWSs serving 3,300 to 10,000 people, EPA could instead include as few as 400 PWSs serving 25 to 3,299 people and 400 PWSs serving 3,300 to 10,000 people (for a representative sample of 800 PWSs serving 25 to 10,000 people). | ||||
2 PWS counts were adjusted to display as whole numbers in each size category. Includes the publicly-owned portion of small systems subject to UCMR 5. | ||||
3 Costs are presented as a percentage of median annual revenue for each size category. | ||||
Ground Water Systems | ||||
500 and under | 8 | 1.0 | $40.65 | 0.09 |
501 to 3,300 | 64 | 1.1 | 43.37 | 0.02 |
3,301 to 10,000 | 467 | 1.3 | 49.92 | 0.01 |
Surface Water (and Ground Water Under the Direct Influence of Surface Water) Systems | ||||
500 and under | 2 | 1.4 | 54.39 | 0.07 |
501 to 3,300 | 25 | 1.4 | 56.19 | 0.02 |
3,301 to 10,000 | 353 | 1.5 | 57.39 | 0.004 |
System size (number of people served) | Annual number of systems impacted 2 | Average annual hours per system | Average annual cost per system | SBREFA criteria- revenue test 3 (%) |
---|---|---|---|---|
1 In the absence of appropriations to support monitoring at all PWSs serving 3,300 to 10,000 people, EPA could instead include as few as 400 PWSs serving 25 to 3,299 people and 400 PWSs serving 3,300 to 10,000 people (for a representative sample of 800 PWSs serving 25 to 10,000 people). | ||||
2 PWS counts were adjusted to display as whole numbers in each size category. Includes the privately-owned portion of small systems subject to UCMR 5. | ||||
3 Costs are presented as a percentage of median annual revenue for each size category. | ||||
Ground Water Systems | ||||
500 and under | 25 | 1.0 | $40.65 | 0.48 |
501 to 3,300 | 24 | 1.1 | $43.37 | 0.03 |
3,301 to 10,000 | 108 | 1.3 | $49.92 | 0.004 |
Surface Water (and Ground Water Under the Direct Influence of Surface Water) Systems | ||||
500 and under | 2 | 1.4 | $54.39 | 0.11 |
501 to 3,300 | 9 | 1.4 | $56.19 | 0.02 |
3,301 to 10,000 | 102 | 1.5 | $57.39 | 0.004 |
Up to 9.4 percent of all small systems ( i.e., up to 5,947 small PWSs serving 25 to 10,000 people) will participate in UCMR 5 if EPA receives the necessary appropriations to support its plan. EPA has determined that participating small systems will experience an average impact of 0.02 percent of revenues. This accounts for small PWSs familiarizing themselves with the regulatory requirements; reading sampling instructions; traveling to the sampling location; collecting and shipping the samples; and maintaining their records. The 5,947 small PWSs are comprised of all 5,147 systems serving between 3,300 and 10,000 people, and the representative group of 800 systems serving between 25 and 3,299 people; the remainder of small systems will not participate in UCMR 5 monitoring and will not be impacted.
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 along with a description of the very minor impacts are previously addressed in this section. Although this final rule will not have a significant economic impact on a substantial number of small entities, EPA has attempted to reduce impacts by assuming all costs for analyses of the samples, and for shipping the samples from small systems to laboratories contracted by EPA to analyze the UCMR 5 samples (the cost of shipping is included in the cost of each analytical method). EPA has historically set aside $2.0 million each year from the Drinking Water State Revolving Fund (DWSRF) with its authority to use DWSRF monies for the purposes of implementing this provision of SDWA. EPA anticipates drawing on these and additional funds, if available, to implement the plan and carry out the expanded UCMR monitoring approach outlined in AWIA. We have therefore concluded that this action will have no significant impact on any directly regulated small entities.
D. Unfunded Mandates Reform Act (UMRA)
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. The action implements mandate(s) specifically and explicitly set forth in SDWA Section 1445(a)(2), Monitoring Program for Unregulated Contaminants.
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.
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. As described previously in this document, this final rule requires monitoring by all large PWSs. Information in the SDWIS/Fed water system inventory indicates there are approximately 27 large Tribal PWSs (serving 10,001 to 40,000 people). EPA estimates the average annual cost to each of these large PWSs, over the 5-year rule period, to be $1,783. This cost is based on a labor component (associated with the collection of samples), and a non-labor component (associated with shipping and laboratory fees). As planned, UCMR 5 is expected to also require monitoring by all small PWSs serving 3,300 to 10,000 people and a nationally representative sample of small PWSs serving 25 to 3,299 people. Information in the SDWIS/Fed water system inventory indicates there are approximately 75 small Tribal PWSs (serving 3,300 to 10,000 people). EPA estimates that less than 2 percent of small Tribal systems serving 25 to 3,299 people will be selected as part of the nationally representative sample. EPA estimates the average annual cost to small Tribal systems over the 5-year rule period to be $52. Such cost is based on the labor associated with collecting a sample and preparing it for shipping. All other small-PWS expenses (associated with shipping and laboratory fees) are paid by EPA.
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, titled, “Summary of the Tribal Coordination and Consultation Process for the Fifth Unregulated Contaminant Monitoring Rule (UCMR 5) Proposal,” is provided in the electronic docket listed in the ADDRESSES section of this preamble.
As required by section 7(a), the EPA's Tribal Consultation Official has certified that the requirements of the executive order have been met in a meaningful and timely manner. A copy of the certification is included in the docket for this action.
G. Executive Order 13045: Protection of Children From Environmental Health Risks and Safety Risks
EPA interprets Executive Order 13045 as applying only to those regulatory actions that concern environmental health or safety risks that EPA has reason to believe may disproportionately affect children, per the definition of “covered regulatory action” in section 2-202 of the Executive Order. This action is not subject to Executive Order 13045 because it does not concern such an environmental health risk or safety risk.
H. Executive Order 13211: Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution or Use
This action is not a “significant energy action” because it is not likely to have a significant adverse effect on the supply, distribution or use of energy and has not otherwise been designated by the Administrator of the Office of Information and Regulatory Affairs as a significant energy action. This is a national drinking water occurrence study that was submitted to OMB for review.
I. National Technology Transfer and Advancement Act (NTTAA)
This action involves technical standards. EPA has identified options that involve using analytical methods developed by the agency and three major voluntary consensus method organizations to support UCMR 5 monitoring. The voluntary consensus method organizations are Standard Methods for the Examination of Water and Wastewater, and ASTM International. EPA identified acceptable consensus method organization standards for the analysis of lithium. A summary of each method along with how the method specifically applies to UCMR 5 can be found in Section III.I of this preamble.
All of these standards are reasonably available for public use. EPA methods are free for download on the agency's website. The methods in the Standard Methods for the Examination of Water and Wastewater 23rd edition are consensus standards, available for purchase from the publisher, and are commonly used by the drinking water laboratory community. The methods in the Standard Methods Online are consensus standards, available for purchase from the publisher's website, and are commonly used by the drinking water laboratory community. The methods from ASTM International are consensus standards, are available for purchase from the publisher's website, and are commonly used by the drinking water laboratory community.
J. Executive Order 12898: Federal Actions To Address Environmental Justice in Minority Populations and Low-Income Populations
EPA believes that this action is not subject to Executive Order 12898 (59 FR 7629, February 16, 1994) because it does not establish an environmental health or safety standard. Background information regarding EPA's consideration of Executive Order 12898 in the development of this final rule is provided in Section III.F of this preamble, and an additional supporting document, titled, “Summary of Environmental Justice Considerations for the Fifth Unregulated Contaminant Monitoring Rule (UCMR 5) Proposal,” has been placed in the electronic docket listed in the ADDRESSES section of this preamble.
K. Congressional Review Act (CRA)
This action is subject to the CRA, and EPA will submit a rule report to each House of the Congress and to the Comptroller General of the United States. This action is not a “major rule” as defined by 5 U.S.C. 804(2).
VI. References
(i) ASDWA. 2013. Insufficient Resources for State Drinking Water Programs Threaten Public Health: An Analysis of State Drinking Water Programs' Resources and Needs. December 2013. Available at https://www.asdwa.org/asdwa-reports/.
(ii) ASTM. 2020. ASTM D1976-20— Standard Test Method for Elements in Water by Inductively-Coupled Plasma Atomic Emission Spectroscopy. ASTM, 100 Barr Harbor Drive, West Conshohocken, PA, 19428. Approved May 1, 2020. Available for purchase at https://www.astm.org/Standards/D1976.htm.
(iii) California DHS. 2002. California Department of Health Services. Determination of 1,2,3-Trichloropropane in Drinking Water by Purge and Trap Gas Chromatography/Mass Spectrometry. Division of Drinking Water and Environmental Management, Sanitation and Radiation Laboratories Branch, Berkeley, CA. Available at https://www.waterboards.ca.gov/drinking_water/certlic/drinkingwater/documents/123-tcp/tcp_by_pt_gcms.pdf.
(iv) Settlement Agreement, Waterkeeper Alliance, Inc. v. U.S. EPA, No. 1:19-cv-00899-LJL (S.D.N.Y. Jun. 1, 2020).
(v) SM. 2017. 3120B—Metals by Plasma Emission Spectroscopy (2017): Inductively Coupled Plasma (ICP) Method. Standard Methods for the Examination of Water and Wastewater, 23rd edition. American Public Health Association, 800 I Street NW, Washington, DC 20001-3710.
(vi) SM Online. 1999. 3120B-99—Metals by Plasma Emission Spectroscopy: Inductively Coupled Plasma (ICP) Method (Editorial Revisions, 2020). Standard Methods Online. Available for purchase at http://www.standardmethods.org.
(vii) USEPA. 1989. National Primary Drinking Water Regulations; Filtration, Disinfection; Turbidity, Giardia lamblia, Viruses, Legionella, and Heterotrophic Bacteria; Final Rule.Federal Register . Vol. 54, No. 124, p. 27486, June 29, 1989.
(viii) USEPA. 1994. EPA Method 200.7—Determination of Metals and Trace Elements in Water and Wastes by Inductively Coupled Plasma-Atomic Emission Spectrometry, Revision 4.4. Office of Research and Development, Cincinnati, OH. Available at https://www.epa.gov/esam/method-2007-determination-metals-and-trace-elements-water-and-wastes-inductively-coupled-plasma.
(ix) USEPA. 1998a. National Primary Drinking Water Regulations: Consumer Confidence Reports; Proposed Rule. Federal Register . Vol. 63, No. 30, p. 7606, February 13, 1998.
(x) USEPA. 1998b. National Primary Drinking Water Regulation: Consumer Confidence Reports; Final Rule. Federal Register . Vol. 63, No. 160, p. 44512, August 19, 1998.
(xi) USEPA. 2010. Technical Basis for the Lowest Concentration Minimum Reporting Level (LCMRL) Calculator. EPA 815-R-11-001. Office of Water. December 2010. Available at https://www.epa.gov/dwanalyticalmethods.
(xii) USEPA. 2011. Exposure Factors Handbook 2011 Edition (Final Report). U.S. EPA, Washington, DC, EPA/600/R-09/052F. Office of Research and Development, Washington, DC. September 2011. Available at https://www.epa.gov/expobox/about-exposure-factors-handbook.
(xiii) USEPA. 2012. Revisions to the Unregulated Contaminant Monitoring Regulation (UCMR 3) for Public Water Systems; Final Rule. Federal Register . Vol. 77, No. 85, p. 26072, May 2, 2012.
(xiv) USEPA. 2016. Revisions to the Unregulated Contaminant Monitoring Rule (UCMR 4) for Public Water Systems and Announcement of Public Meeting. Federal Register . Vol. 81, No. 244, p. 92666, December 20, 2016.
(xv) USEPA. 2017. National Primary Drinking Water Regulations; Announcement of the Results of EPA's Review of Existing Drinking Water Standards and Request for Public Comment and/or Information on Related Issues. Federal Register . Vol. 82, No. 7, p. 3518, January 11, 2017.
(xvi) USEPA. 2018. Method Development for Unregulated Contaminants in Drinking Water: Public Meeting and Webinar. EPA 815-A-18-001. Office of Water. June 2018. Available at https://www.epa.gov/dwanalyticalmethods.
(xvii) USEPA. 2019a. Development of the Proposed Unregulated Contaminant Monitoring Rule for the Fifth Monitoring Cycle (UCMR 5). Presentation Slides. EPA 815-A-19-001. Office of Water. Available at https://www.epa.gov/dwucmr/unregulated-contaminant-monitoring-rule-ucmr-meetings-and-materials.
(xviii) USEPA. 2019b. EPA Method 533—Determination of Per- and Polyfluoroalkyl Substances in Drinking Water by Isotope Dilution Anion Exchange Solid Phase Extraction and Liquid Chromatography/Tandem Mass Spectrometry. EPA 815-B-19-020. Office of Water, Cincinnati, OH. November 2019. Available at https://www.epa.gov/dwanalyticalmethods.
(xix) USEPA. 2019c. Appendix C: 1,2,3-Trichloropropane in Regulatory Determination 4 Support Document for Selected Contaminants from the Fourth Drinking Water Contaminant Candidate List (CCL 4). EPA 815-R-19-006. Docket ID EPA-HQ-OW-2019-0583. Available at https://www.regulations.gov.
(xx) USEPA. 2020. EPA Method 537.1—Determination of Selected Per- and Polyfluorinated Alkyl Substances in Drinking Water by Solid Phase Extraction and Liquid Chromatography/Tandem Mass Spectrometry (LC/MS/MS). Version 2.0. EPA/600/R-20/006. Office of Research and Development, Cincinnati, OH. March 2020. Available at https://www.epa.gov/dwanalyticalmethods.
(xxii) USEPA. 2021a. Selection of Nationally Representative Public Water Systems for the Unregulated Contaminant Monitoring Rule: 2021 Update. EPA 815-B-21-012. Office of Water. December 2021.
(xxiii) USEPA. 2021b. Information Collection Request for the Final Unregulated Contaminant Monitoring Rule (UCMR 5). EPA 815-B-21-008. Office of Water. December 2021.
(xxiv) USEPA. 2021c. Revisions to the Unregulated Contaminant Monitoring Rule for the Fifth Monitoring Cycle (UCMR 5): Public Meeting and Webinar. Presentation Slides. EPA 815-A-21-001. Office of Water. April 2021. Available at https://www.epa.gov/dwucmr/unregulated-contaminant-monitoring-rule-ucmr-meetings-and-materials.
(xxv) USEPA. 2021d. Drinking Water Contaminant Candidate List 5—Draft. Federal Register . Vol. 86, No. 135 p. 37948, July 19, 2021.
(xxvi) USEPA. 2021e. Information Compendium for Contaminants for the Final Unregulated Contaminant Monitoring Rule (UCMR 5). EPA 815-B-21-009. Office of Water. December 2021.
(xxvii) USEPA. 2021f. UCMR 5 Laboratory Approval Manual. EPA 815-B-21-010. Office of Water. December 2021.
(xxviii) USEPA. 2021g. Revisions to the Unregulated Contaminant Monitoring Rule for Public Water Systems and Announcement of Public Meeting; Proposed Rule and Notice of Public Meeting. Federal Register . Vol. 86, No. 46, p. 13846, March 11, 2021.
(xxix) USEPA. 2021h. Revisions to 40 CFR 141.35 and 141.40. EPA 815-B-21-011. Office of Water. December 2021. Available in EPA's public docket (under Docket ID No. EPA-HQ-OW-2020-0530) at https://www.regulations.gov.
(xxx) USEPA. 2021i. Response to Comments on the Fifth Unregulated Contaminant Monitoring Rule (UCMR 5) Proposal. EPA 815-R-21-008. Office of Water. December 2021.
(xxi) USEPA. 2021j. Instructions for Preparing a Ground Water Representative Monitoring Plan for the Unregulated Contaminant Monitoring Rule. EPA 815-B-21-013. Office of Water. December 2021.
List of Subjects in 40 CFR Part 141
Environmental protection, Chemicals, Incorporation by reference, Indian—lands, Intergovernmental relations, Reporting and recordkeeping requirements, Water supply.
Michael S. Regan,
Administrator.
For the reasons set forth in the preamble, EPA amends 40 CFR part 141 as follows:
PART 141—NATIONAL PRIMARY DRINKING WATER REGULATIONS
1. The authority citation for part 141 continues to read as follows:
Authority:
42 U.S.C. 300f, 300g-1, 300g-2, 300g-3, 300g-4, 300g-5, 300g-6, 300j-4, 300j-9, and 300j-11.
Subpart D—Reporting and Recordkeeping
2. Amend §141.35 as follows:
a. In paragraph (a), revise the fourth sentence;
b. In paragraph (c)(1), remove the text “December 31, 2017” and add, in its place the text “December 31, 2022”;
c. Revise paragraphs (c)(2), (c)(3)(i) through (iii), (c)(4), (c)(5)(i), and (c)(6)(ii);
d. In paragraph (d)(2), revise the first, second, and third sentences; and
f. Revise paragraph (e).
The revisions read as follows:
§141.35 Reporting for unregulated contaminant monitoring results.
(a) * * * For the purposes of this section, PWS “population served” is the retail population served directly by the PWS as reported to the Federal Safe Drinking Water Information System (SDWIS/Fed). * * *
* * * * *
(c) * * *
(2) Sampling location inventory information. You must provide your inventory information by December 31, 2022, using EPA's electronic data reporting system, as specified in paragraph (b)(1) of this section. You must submit, verify, or update data elements 1-9 (as defined in Table 1 of paragraph (e) of this section) for each sampling location, or for each approved representative sampling location (as specified in paragraph (c)(3) of this section) regarding representative sampling locations. If this information changes, you must report updates, including new sources, and sampling locations that are put in use before or during the UCMR sampling period, to EPA's electronic data reporting system within 30 days of the change.
(3) * * *
(i) Qualifications. Large PWSs that have EPA- or State-approved representative EPTDS sampling locations from a previous UCMR cycle, or as provided for under 40 CFR 141.23(a)(1), 40 CFR 141.24(f)(1), or 40 CFR 141.24(h)(1), may submit a copy of documentation from your State or EPA that approves your representative sampling plan. PWSs that do not have an approved representative EPTDS sampling plan may submit a proposal to sample at representative EPTDS(s) rather than at each individual EPTDS if: You use ground water as a source; all of your well sources have either the same treatment or no treatment; and you have multiple EPTDSs from the same source ( i.e., same aquifer). You must submit a copy of the existing or proposed representative EPTDS sampling plan, as appropriate, at least six months prior to your scheduled sample collection, as specified in paragraph (b)(1) of this section. If changes to your inventory that impact your representative plan occur before or during the UCMR sampling period, you must report updates within 30 days of the change.
(ii) Demonstration. If you are submitting a proposal to sample at representative EPTDS(s) rather than at each individual EPTDS, you must demonstrate that any EPTDS that you propose as representative of multiple wells is associated with a well that draws from the same aquifer as the wells it will represent. The proposed well must be representative of the highest annual volume and most consistently active wells in the representative array. If that representative well is not in use at the scheduled sampling time, you must select and sample an alternative representative well. You must submit the information defined in Table 1, paragraph (e) of this section for each proposed representative sampling location. You must also include documentation to support your proposal that the specified wells are representative of other wells. This documentation can include system-maintained well logs or construction drawings indicating that the representative well(s) is/are at a representative depth, and details of well casings and grouting; data demonstrating relative homogeneity of water quality constituents ( e.g., pH, dissolved oxygen, conductivity, iron, manganese) in samples drawn from each well; and data showing that your wells are located in a limited geographic area ( e.g., all wells within a 0.5 mile radius) and/or, if available, the hydrogeologic data indicating the ground water travel time between the representative well and each of the individual wells it represents ( e.g., all wells within a five-year time of travel delineation). Your proposal must be sent in writing to EPA, as specified in paragraph (b)(1) of this section.
(iii) Approval. EPA or the State (as specified in the Partnership Agreement reached between the State and EPA) will review your proposal and coordinate any necessary changes with you. Your plan will not be final until you receive written approval from EPA, identifying the final list of EPTDSs where you will be required to monitor.
(4) Contacting EPA if your PWS has not been notified of requirements. If you believe you are subject to UCMR requirements, as defined in 40 CFR 141.40(a)(1) and (a)(2)(i), and you have not been contacted by either EPA or your State by April 26, 2022, you must send a letter to EPA, as specified in paragraph (b)(1) of this section. The letter must be from your PWS Official and must include an explanation as to why the UCMR requirements are applicable to your system along with the appropriate contact information. A copy of the letter must also be submitted to the State as directed by the State. EPA will make an applicability determination based on your letter, and in consultation with the State when necessary and will notify you regarding your applicability status and required sampling schedule. However, if your PWS meets the applicability criteria specified in 40 CFR 141.40(a)(2)(i), you are subject to the UCMR monitoring and reporting requirements, regardless of whether you have been contacted by the State or EPA.
(5) * * *
(i) General rescheduling notification requirements. Large systems may independently change their monitoring schedules up to December 31, 2022, using EPA's electronic data reporting system, as specified in paragraph (b)(1) of this section. After this date has passed, if your PWS cannot sample according to your assigned sampling schedule ( e.g., because of budget constraints, or if a sampling location will be closed during the scheduled month of monitoring), you must mail or email a letter to EPA, as specified in paragraph (b)(1) of this section, prior to the scheduled sampling date. You must include an explanation of why the samples cannot be taken according to the assigned schedule, and you must provide the alternative schedule you are requesting. You must not reschedule monitoring specifically to avoid sample collection during a suspected vulnerable period. You are subject to your assigned UCMR sampling schedule or the schedule that you revised on or before December 31, 2022, unless and until you receive a letter from EPA specifying a new schedule.
* * * * *
(6) * * *
(ii) Reporting schedule. You must require your laboratory, on your behalf, to post and approve the data in EPA's electronic data reporting system, accessible at https://www.epa.gov/dwucmr, for your review within 90 days from the sample collection date (sample collection must occur as specified in 40 CFR 141.40(a)(4)). You then have 30 days from when the laboratory posts and approves your data to review, approve, and submit the data to the State and EPA via the agency's electronic data reporting system. If you do not electronically approve and submit the laboratory data to EPA within 30 days of the laboratory posting approved data, the data will be considered approved by you and available for State and EPA review.
* * * * *
(d) * * *
(2) Sampling location inventory information. You must provide your inventory information by December 31, 2022, using EPA's electronic data reporting system, as specified in paragraph (b)(1) of this section. If this information changes, you must report updates, including new sources, and sampling locations that are put in use before or during the UCMR sampling period, to EPA's electronic data reporting system within 30 days of the change, as specified in paragraph (b)(1) of this section. * * *
(e) Data elements. Table 1 defines the data elements that must be provided for UCMR monitoring.
Data element | Definition |
---|---|
1. Public Water System Identification (PWSID) Code | The code used to identify each PWS. The code begins with the standard 2-character postal State abbreviation or Region code; the remaining 7 numbers are unique to each PWS in the State. The same identification code must be used to represent the PWS identification for all current and future UCMR monitoring. |
2. Public Water System Name | Unique name, assigned once by the PWS. |
3. Public Water System Facility Identification Code | An identification code established by the State or, at the State's discretion, by the PWS, following the format of a 5-digit number unique within each PWS for each applicable facility (i.e., for each source of water, treatment plant, distribution system, or any other facility associated with water treatment or delivery). The same identification code must be used to represent the facility for all current and future UCMR monitoring. |
4. Public Water System Facility Name | Unique name, assigned once by the PWS, for every facility ID ( e.g., Treatment Plant). |
5. Public Water System Facility Type | That code that identifies that type of facility as either: CC = Consecutive connection. SS = Sampling station. TP = Treatment plant. OT = Other. |
6. Water Source Type | The type of source water that supplies a water system facility. Systems must report one of the following codes for each sampling location: |
SW = Surface water (to be reported for water facilities that are served entirely by a surface water source during the 12-month period). | |
GU = Ground water under the direct influence of surface water (to be reported for water facilities that are served all or in part by ground water under the direct influence of surface water at any time during the 12-month sampling period), and are not served at all by surface water during this period. | |
MX = Mixed water (to be reported for water facilities that are served by a mix of surface water, ground water, and/or ground water under the direct influence of surface water during the 12-month period). | |
GW = Ground water (to be reported for water facilities that are served entirely by a ground water source during the 12-month period). | |
7. Sampling Point Identification Code | An identification code established by the State, or at the State's discretion, by the PWS, that uniquely identifies each sampling point. Each sampling code must be unique within each applicable facility, for each applicable sampling location (i.e ., entry point to the distribution system). The same identification code must be used to represent the sampling location for all current and future UCMR monitoring. |
8. Sampling Point Name | Unique sample point name, assigned once by the PWS, for every sample point ID ( e.g., Entry Point). |
9. Sampling Point Type Code | A code that identifies the location of the sampling point as: EP = Entry point to the distribution system. |
10. Disinfectant Type | All of the disinfectants/oxidants that have been added prior to and at the entry point to the distribution system. Please select all that apply: |
PEMB = Permanganate. | |
HPXB = Hydrogen peroxide. | |
CLGA = Gaseous chlorine. | |
CLOF = Offsite generated hypochlorite (stored as a liquid form). | |
CLON = Onsite generated hypochlorite. | |
CAGC = Chloramine (formed with gaseous chlorine). | |
CAOF = Chloramine (formed with offsite hypochlorite). | |
CAON = Chloramine (formed with onsite hypochlorite). | |
CLDB = Chlorine dioxide. | |
OZON = Ozone. | |
ULVL = Ultraviolet light. | |
OTHD = All other types of disinfectant/oxidant. | |
NODU = No disinfectant/oxidant used. | |
11. Treatment Information | Treatment information associated with the sample point. Please select all that apply. |
CON = Conventional (non-softening, consisting of at least coagulation/sedimentation basins and filtration). | |
SFN = Softening. | |
RBF = River bank filtration. | |
PSD = Pre-sedimentation. | |
INF = In-line filtration. | |
DFL = Direct filtration. | |
SSF = Slow sand filtration. | |
BIO = Biological filtration (operated with an intention of maintaining biological activity within filter). | |
UTR = Unfiltered treatment for surface water source. | |
GWD = Groundwater system with disinfection only. | |
PAC = Application of powder activated carbon. | |
GAC = Granular activated carbon adsorption (not part of filters in CON, SFN, INF, DFL, or SSF). | |
AIR = Air stripping (packed towers, diffused gas contactors). | |
POB = Pre-oxidation with chlorine (applied before coagulation for CON or SFN plants or before filtration for other filtration plants). | |
MFL = Membrane filtration. | |
IEX = Ionic exchange. | |
DAF = Dissolved air floatation. | |
CWL = Clear well/finished water storage without aeration. | |
CWA = Clear well/finished water storage with aeration. | |
ADS = Aeration in distribution system (localized treatment). | |
OTH = All other types of treatment. | |
NTU = No treatment used. | |
DKN = Do not know. | |
12. Sample Collection Date | The date the sample is collected, reported as 4-digit year, 2-digit month, and 2-digit day (YYYYMMDD). |
13. Sample Identification Code | An alphanumeric value up to 30 characters assigned by the laboratory to uniquely identify containers, or groups of containers, containing water samples collected at the same sampling location for the same sampling date. |
14. Contaminant | The unregulated contaminant for which the sample is being analyzed. |
15. Analytical Method Code | The identification code of the analytical method used. |
16. Extraction Batch Identification Code | Laboratory assigned extraction batch ID. Must be unique for each extraction batch within the laboratory for each method. For CCC samples report the Analysis Batch Identification Code as the value for this field. For methods without an extraction batch, leave this field null. |
17. Extraction Date | Date for the start of the extraction batch (YYYYMMDD). For methods without an extraction batch, leave this field null. |
18. Analysis Batch Identification Code | Laboratory assigned analysis batch ID. Must be unique for each analysis batch within the laboratory for each method. |
19. Analysis Date | Date for the start of the analysis batch (YYYYMMDD). |
20. Sample Analysis Type | The type of sample collected and/or prepared, as well as the fortification level. Permitted values include: CCCL = MRL level continuing calibration check; a calibration standard containing the contaminant, the internal standard, and surrogate analyzed to verify the existing calibration for those contaminants. |
CCCM = Medium level continuing calibration check; a calibration standard containing the contaminant, the internal standard, and surrogate analyzed to verify the existing calibration for those contaminants. | |
CCCH = High level continuing calibration check; a calibration standard containing the contaminant, the internal standard, and surrogate analyzed to verify the existing calibration for those contaminants. | |
FS = Field sample; sample collected and submitted for analysis under this final rule. | |
LFB = Laboratory fortified blank; an aliquot of reagent water fortified with known quantities of the contaminants and all preservation compounds. | |
LRB = Laboratory reagent blank; an aliquot of reagent water treated exactly as a field sample, including the addition of preservatives, internal standards, and surrogates to determine if interferences are present in the laboratory, reagents, or other equipment. | |
LFSM = Laboratory fortified sample matrix; a UCMR field sample with a known amount of the contaminant of interest and all preservation compounds added. | |
LFSMD = Laboratory fortified sample matrix duplicate; duplicate of the laboratory fortified sample matrix. | |
QCS = Quality control sample; a sample prepared with a source external to the one used for initial calibration and CCC. The QCS is used to check calibration standard integrity. | |
FRB = Field reagent blank; an aliquot of reagent water treated as a sample including exposure to sampling conditions to determine if interferences or contamination are present from sample collection through analysis. | |
21. Analytical Result—Sign | A value indicating whether the sample analysis result was: (<) “less than” means the contaminant was not detected, or was detected at a level below the Minimum Reporting Level. (=) “equal to” means the contaminant was detected at the level reported in “Analytical Result— Measured Value.” |
22. Analytical Result—Measured Value | The actual numeric value of the analytical results for: Field samples; laboratory fortified matrix samples; laboratory fortified sample matrix duplicates; and concentration fortified. |
23. Additional Value | Represents the true value or the fortified concentration for spiked samples for QC Sample Analysis Types (CCCL, CCCM, CCCH, QCS, LFB, LFSM, and LFSMD). |
24. Laboratory Identification Code | The code, assigned by EPA, used to identify each laboratory. The code begins with the standard two-character State postal abbreviation; the remaining five numbers are unique to each laboratory in the State. |
25. Sample Event Code | A code assigned by the PWS for each sample event. This will associate samples with the PWS monitoring plan to allow EPA to track compliance and completeness. Systems must assign the following codes: |
SE1, SE2, SE3, and SE4—Represent samples collected to meet UCMR Assessment Monitoring requirements; where “SE1” and “SE2” represent the first and second sampling period for all water types; and “SE3” and “SE4” represent the third and fourth sampling period for SW, GU, and MX sources only. | |
26. Historical Information for Contaminant Detections and Treatment | A yes or no answer provided by the PWS for each entry point to the distribution system. Question: Have you tested for the contaminant in your drinking water in the past? YES = If yes, did you modify your treatment and if so, what types of treatment did you implement? Select all that apply. |
PAC = Application of powder activated carbon. | |
GAC = Granular activated carbon adsorption (not part of filters in CON, SFN, INF, DFL, or SSF). | |
IEX = Ionic exchange. | |
NRO = Nanofiltration and reverse osmosis. | |
OZN = Ozone. | |
BAC = Biologically active carbon. | |
MFL = Membrane filtration. | |
UVL = Ultraviolet light. | |
OTH = Other. | |
NMT = Not modified after testing. | |
NO = Have never tested for the contaminant. | |
DK = Do not know. | |
27. Potential PFAS Sources | A yes or no answer provided by the PWS for each entry point to the distribution system. Question: Are you aware of any potential current and/or historical sources of PFAS that may have impacted the drinking water sources at your water system? |
YES = If yes, select all that apply: | |
MB = Military base. | |
FT = Firefighting training school. | |
AO = Airport operations. | |
CW = Car wash or industrial launderers. | |
PS = Public safety activities ( e.g., fire and rescue services). | |
WM = Waste management. | |
HW = Hazardous waste collection, treatment, and disposal. | |
UW = Underground injection well. | |
SC = Solid waste collection, combustors, incinerators. | |
MF = Manufacturing. | |
FP = Food packaging. | |
TA = Textile and apparel ( e.g., stain- and water-resistant, fiber/thread, carpet, house furnishings, leather). | |
PP = Paper. | |
CC = Chemical. | |
PR = Plastics and rubber products. | |
MM = Machinery. | |
CE = Computer and electronic products. | |
FM = Fabricated metal products (e.g., nonstick cookware). | |
PC = Petroleum and coal products. | |
FF = Furniture. | |
OG = Oil and gas production. | |
UT = Utilities (e.g ., sewage treatment facilities). | |
CT = Construction (e.g ., wood floor finishing, electrostatic painting). | |
OT = Other. | |
NO = Not aware of any potential current and/or historical sources. | |
DK = Do not know. |
Subpart E—Special Regulations, Including Monitoring Regulations and Prohibition on Lead Use
3. Amend §141.40 as follows:
a. In paragraph (a) introductory text, remove the text “December 31, 2015” and add in its place the text “February 1, 2021 or subsequent corrections from the State”;
b. Revise paragraphs (a)(2)(ii) introductory text, (a)(2)(ii)(A), and (a)(3);
c. In paragraph (a)(4)(i) introductory text, remove the text “December 31, 2017” and add in its place the text “December 31, 2022”;
d. Revise paragraphs (a)(4)(i)(A) through (C), (a)(4)(ii) introductory text, and the first sentence in paragraph (a)(4)(ii)(A);
e. Remove paragraph (a)(4)(iii);
f. In paragraph (a)(5)(ii), revise the fifth and sixth sentences;
g. Revise paragraph (a)(5)(iii) introductory text;
h. Remove and reserve paragraph (a)(5)(iv); and
i. Revise paragraphs (a)(5)(v) and (vi) and paragraph (c).
The revisions read as follows:
§141.40 Monitoring requirements for unregulated contaminants.
(a) * * *
(2) * * *
(ii) Small systems. EPA will provide sample containers, provide pre-paid air bills for shipping the sampling materials, conduct the laboratory analysis, and report and review monitoring results for all small systems selected to conduct monitoring under paragraphs (a)(2)(ii)(A) through (C) of this section. If you own or operate a PWS (other than a transient non-community water system) that serves a retail population of 10,000 or fewer people and you are notified of monitoring requirements by the State or EPA, you must monitor as follows:
(A) Assessment Monitoring. You must monitor for the contaminants on List 1 per table 1 to paragraph (a)(3) if you are notified by your State or EPA that you are part of the State Monitoring Plan for Assessment Monitoring.
* * * * *
(3) Analytes to be monitored. Lists 1, 2, and 3 contaminants are provided in table 1 to paragraph (a)(3):
1—Contaminant | 2—CASRN | 3—Analytical methods a | 4—Minimum reporting level b | 5—Sampling location c | 6—Period during which sample collection to be completed |
---|---|---|---|---|---|
Column headings are: | |||||
1—Contaminant: The name of the contaminant to be analyzed. | |||||
2—CASRN (Chemical Abstracts Service Registry Number) or Identification Number: A unique number identifying the chemical contaminants. | |||||
3—Analytical Methods: Method numbers identifying the methods that must be used to test the contaminants. | |||||
4—Minimum Reporting Level (MRL): The value and unit of measure at or above which the concentration of the contaminant must be measured using the approved analytical methods. If EPA determines, after the first six months of monitoring that the specified MRLs result in excessive resampling, EPA will establish alternate MRLs and will notify affected PWSs and laboratories of the new MRLs. N/A is defined as non-applicable. | |||||
5—Sampling Location: The locations within a PWS at which samples must be collected. | |||||
6—Period During Which Sample Collection to be Completed: The time period during which the sampling and testing will occur for the indicated contaminant. | |||||
a The analytical procedures shall be performed in accordance with the documents associated with each method, see paragraph (c) of this section. | |||||
b The MRL is the minimum concentration of each analyte that must be reported to EPA. | |||||
c Sampling must occur at your PWS's entry points to the distribution system (EPTDSs), after treatment is applied, that represent each non-emergency water source in routine use over the 12-month period of monitoring. Systems that purchase water with multiple connections from the same wholesaler may select one representative connection from that wholesaler. The representative EPTDS must be a location within the purchaser's water system. This EPTDS sampling location must be representative of the highest annual volume connections. If the connection selected as the representative EPTDS is not available for sampling, an alternate highest volume representative connection must be sampled. See 40 CFR 141.35(c)(3) for an explanation of the requirements related to the use of representative GW EPTDSs. | |||||
List 1: Assessment Monitoring | |||||
Per- and Polyfluoroalkyl Substances (PFAS) | |||||
11-chloroeicosafluoro-3-oxaundecane-1-sulfonic acid (11Cl-PF3OUdS) | 763051-92-9 | EPA 533 | 0.005 µg/L | EPTDS | 1/1/2023-12/31/2025 |
1H, 1H, 2H, 2H-perfluorodecane sulfonic acid (8:2 FTS) | 39108-34-4 | EPA 533 | 0.005 µg/L | EPTDS | 1/1/2023-12/31/2025 |
1H, 1H, 2H, 2H-perfluorohexane sulfonic acid (4:2 FTS) | 757124-72-4 | EPA 533 | 0.003 µg/L | EPTDS | 1/1/2023-12/31/2025 |
1H, 1H, 2H, 2H-perfluorooctane sulfonic acid (6:2 FTS) | 27619-97-2 | EPA 533 | 0.005 µg/L | EPTDS | 1/1/2023-12/31/2025 |
4,8-dioxa-3H-perfluorononanoic acid (ADONA) | 919005-14-4 | EPA 533 | 0.003 µg/L | EPTDS | 1/1/2023-12/31/2025 |
9-chlorohexadecafluoro-3-oxanone-1-sulfonic acid (9Cl-PF3ONS) | 756426-58-1 | EPA 533 | 0.002 µg/L | EPTDS | 1/1/2023-12/31/2025 |
hexafluoropropylene oxide dimer acid (HFPO-DA) (GenX) | 13252-13-6 | EPA 533 | 0.005 µg/L | EPTDS | 1/1/2023-12/31/2025 |
nonafluoro‐3,6‐dioxaheptanoic acid (NFDHA) | 151772-58-6 | EPA 533 | 0.02 µg/L | EPTDS | 1/1/2023-12/31/2025 |
perfluoro (2‐ethoxyethane) sulfonic acid (PFEESA) | 113507-82-7 | EPA 533 | 0.003 µg/L | EPTDS | 1/1/2023-12/31/2025 |
perfluoro‐3‐methoxypropanoic acid (PFMPA) | 377-73-1 | EPA 533 | 0.004 µg/L | EPTDS | 1/1/2023-12/31/2025 |
perfluoro‐4‐methoxybutanoic acid (PFMBA) | 863090-89-5 | EPA 533 | 0.003 µg/L | EPTDS | 1/1/2023-12/31/2025 |
perfluorobutanesulfonic acid (PFBS) | 375-73-5 | EPA 533 | 0.003 µg/L | EPTDS | 1/1/2023-12/31/2025 |
perfluorobutanoic acid (PFBA) | 375-22-4 | EPA 533 | 0.005 µg/L | EPTDS | 1/1/2023-12/31/2025 |
perfluorodecanoic acid (PFDA) | 335-76-2 | EPA 533 | 0.003 µg/L | EPTDS | 1/1/2023-12/31/2025 |
perfluorododecanoic acid (PFDoA) | 307-55-1 | EPA 533 | 0.003 µg/L | EPTDS | 1/1/2023-12/31/2025 |
perfluoroheptanesulfonic acid (PFHpS) | 375-92-8 | EPA 533 | 0.003 µg/L | EPTDS | 1/1/2023-12/31/2025 |
perfluoroheptanoic acid (PFHpA) | 375-85-9 | EPA 533 | 0.003 µg/L | EPTDS | 1/1/2023-12/31/2025 |
perfluorohexanesulfonic acid (PFHxS) | 355-46-4 | EPA 533 | 0.003 µg/L | EPTDS | 1/1/2023-12/31/2025 |
perfluorohexanoic acid (PFHxA) | 307-24-4 | EPA 533 | 0.003 µg/L | EPTDS | 1/1/2023-12/31/2025 |
perfluorononanoic acid (PFNA) | 375-95-1 | EPA 533 | 0.004 µg/L | EPTDS | 1/1/2023-12/31/2025 |
perfluorooctanesulfonic acid (PFOS) | 1763-23-1 | EPA 533 | 0.004 µg/L | EPTDS | 1/1/2023-12/31/2025 |
perfluorooctanoic acid (PFOA) | 335-67-1 | EPA 533 | 0.004 µg/L | EPTDS | 1/1/2023-12/31/2025 |
perfluoropentanesulfonic acid (PFPeS) | 2706-91-4 | EPA 533 | 0.004 µg/L | EPTDS | 1/1/2023-12/31/2025 |
perfluoropentanoic acid (PFPeA) | 2706-90-3 | EPA 533 | 0.003 µg/L | EPTDS | 1/1/2023-12/31/2025 |
perfluoroundecanoic acid (PFUnA) | 2058-94-8 | EPA 533 | 0.002 µg/L | EPTDS | 1/1/2023-12/31/2025 |
n-ethyl perfluorooctanesulfonamidoacetic acid (NEtFOSAA) | 2991-50-6 | EPA 537.1 | 0.005 µg/L | EPTDS | 1/1/2023-12/31/2025 |
n-methyl perfluorooctanesulfonamidoacetic acid (NMeFOSAA) | 2355-31-9 | EPA 537.1 | 0.006 µg/L | EPTDS | 1/1/2023-12/31/2025 |
perfluorotetradecanoic acid (PFTA) | 376-06-7 | EPA 537.1 | 0.008 µg/L | EPTDS | 1/1/2023-12/31/2025 |
perfluorotridecanoic acid (PFTrDA) | 72629-94-8 | EPA 537.1 | 0.007 µg/L | EPTDS | 1/1/2023-12/31/2025 |
Metal/Pharmaceutical | |||||
Lithium | 7439-93-2 | EPA 200.7, SM 3120 B, ASTM D1976-20 | 9 µg/L | EPTDS | 1/1/2023-12/31/2025 |
List 2: Screening Survey | |||||
Reserved | Reserved | Reserved | Reserved | Reserved | Reserved |
List 3: Pre-Screen Testing | |||||
Reserved | Reserved | Reserved | Reserved | Reserved | Reserved |
(4) * * *
(i) * * *
(A) Sample collection period. You must collect the samples in one continuous 12-month period for List 1 Assessment Monitoring, and, if applicable, for List 2 Screening Survey, or List 3 Pre-Screen Testing, during the timeframe indicated in column 6 of table 1 to paragraph (a)(3) of this section. EPA or your State will specify the month(s) and year(s) in which your monitoring must occur. As specified in 40 CFR 141.35(c)(5), you must contact EPA if you believe you cannot collect samples according to your schedule.
(B) Frequency. You must collect the samples within the timeframe and according to the frequency specified by contaminant type and water source type for each sampling location, as specified in table 2 to this paragraph (a)(4)(i)(B). For the second or subsequent round of sampling, if a sample location is non-operational for more than one month before and one month after the scheduled sampling month ( i.e., it is not possible for you to sample within the window specified in table 2), you must notify EPA as specified in 40 CFR 141.35(c)(5) to reschedule your sampling.
Contaminant type | Water source type | Timeframe | Frequency 1 |
---|---|---|---|
1 Systems must assign a sample event code for each contaminant listed in Table 1. Sample event codes must be assigned by the PWS for each sample event. For more information on sample event codes see 40 CFR 141.35(e) Table 1. | |||
List 1 Contaminants | Surface water, Mixed, or GWUDI | 12 months | You must monitor for four consecutive quarters. Sample events must occur three months apart. (Example: If first monitoring is in January, the second monitoring must occur any time in April, the third any time in July, and the fourth any time in October). |
Ground water | 12 months | You must monitor twice in a consecutive 12-month period. Sample events must occur 5-7 months apart. (Example: If the first monitoring event is in April, the second monitoring event must occur any time in September, October, or November.) |
(C) Location. You must collect samples for each List 1 Assessment Monitoring contaminant, and, if applicable, for each List 2 Screening Survey, or List 3 Pre-Screen Testing contaminant, as specified in table 1 to paragraph (a)(3) of this section. Samples must be collected at each sample point that is specified in column 5 and footnote c of table 1 to paragraph (a)(3) of this section. If you are a GW system with multiple EPTDSs, and you request and receive approval from EPA or the State for sampling at representative EPTDS(s), as specified in 40 CFR 141.35(c)(3), you must collect your samples from the approved representative sampling location(s).
* * * * *
(ii) Small systems. If you serve a population of 10,000 or fewer people and are notified that you are part of the State Monitoring Plan, you must comply with the requirements specified in paragraphs (a)(4)(ii)(A) through (H) of this section. If EPA or the State informs you that they will be collecting your UCMR samples, you must assist them in identifying the appropriate sampling locations and in collecting the samples.
(A) Sample collection and frequency. You must collect samples at the times specified for you by the State or EPA. Your schedule must follow both the timing of monitoring specified in table 1 to paragraph (a)(3) of this section, List 1, and, if applicable, List 2, or List 3, and the frequency of monitoring in table 2 to paragraph (a)(4)(i)(B) of this section.
* * * * *
(5) * * *
(ii) * * * To participate in the UCMR Laboratory Approval Program, the laboratory must register and complete the necessary application materials by August 1, 2022. Correspondence must be addressed to: UCMR Laboratory Approval Coordinator, USEPA, Technical Support Center, 26 West Martin Luther King Drive, (MS 140), Cincinnati, Ohio 45268; or emailed to EPA at: UCMR_Lab_Approval@epa.gov.
(iii) Minimum Reporting Level. The MRL is defined by EPA as the quantitation limit achievable, with 95 percent confidence, by 75 percent of laboratories nationwide, assuming the use of good instrumentation and experienced analysts.
* * * * *
(v) Method defined quality control. You must ensure that your laboratory analyzes Laboratory Fortified Blanks and conducts Laboratory Performance Checks, as appropriate to the method's requirements, for those methods listed in column 3 in table 1 to paragraph (a)(3) of this section. Each method specifies acceptance criteria for these QC checks.
(vi) Reporting. You must require your laboratory, on your behalf, to post and approve these data in EPA's electronic data reporting system, accessible at https://www.epa.gov/dwucmr, for your review within 90 days from the sample collection date. You then have 30 days from when the laboratory posts and approves your data to review, approve, and submit the data to the State and EPA, via the agency's electronic data reporting system. If you do not electronically approve and submit the laboratory data to EPA within 30 days of the laboratory posting approved data, the data will be considered approved by you and available for State and EPA review.
* * * * *
(c) Incorporation by reference. The standards required in this section are incorporated by reference into this section with the approval of the Director of the Federal Register under 5 U.S.C. 552(a) and 1 CFR part 51. All approved material is available for inspection at U.S. Environmental Protection Agency, Water Docket, EPA/DC, EPA West, Room 3334, 1301 Constitution Ave. NW, Washington, DC 20004, (202) 566-1744, email Docket-customerservice@epa.gov, or go to https://www.epa.gov/dockets/epa-docket-center-reading-room, and is available from the sources indicated elsewhere in this paragraph. The material is also available for inspection at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, email fr.inspection@nara.gov, or go to www.archives.gov/federal-register/cfr/ibr-locations.html.
(1) U.S. Environmental Protection Agency, EPA West, Room 3334, 1301 Constitution Ave. NW, Washington, DC 20004; telephone: (202) 566-1744.
(i) Method 200.7, “Determination of Metals and Trace Elements in Water and Wastes by Inductively Coupled Plasma-Atomic Emission Spectrometry,” Revision 4.4, EMMC Version, 1994. Available at https://www.epa.gov/esam/method-2007-determination-metals-and-trace-elements-water-and-wastes-inductively-coupled-plasma.
(ii) Method 537.1, “Determination of Selected Per- and Polyfluorinated Alkyl Substances in Drinking Water by Solid Phase Extraction and Liquid Chromatography/Tandem Mass Spectrometry,” Version 2.0, 2020. Available at https://www.epa.gov/water-research/epa-drinking-water-research-methods.
(iii) Method 533, “Determination of Per- and Polyfluoroalkyl Substances in Drinking Water by Isotope Dilution Anion Exchange Solid Phase Extraction and Liquid Chromatography/Tandem Mass Spectrometry,” November 2019, EPA 815-B-19-020. Available at https://www.epa.gov/dwanalyticalmethods.
(2) American Public Health Association, 800 I Street NW, Washington, DC 20001-3710; telephone: (202) 777-2742; email: comments@apha.org; www.apha.org.
(i) “Standard Methods for the Examination of Water & Wastewater,” 23rd edition (2017).
(A) SM 3120 B, “Metals by Plasma Emission Spectroscopy (2017): Inductively Coupled Plasma (ICP) Method.”
(B) [Reserved]
(ii) “Standard Methods Online,” approved 1999; https://www.standardmethods.org.
(A) SM 3120 B, “Metals by Plasma Emission Spectroscopy: Inductively Coupled Plasma (ICP) Method,” revised December 14, 2020.
(B) [Reserved]
(3) ASTM International, 100 Barr Harbor Drive, West Conshohocken, PA 19428-2959; telephone: (610) 832-9500; email: service@astm.org; www.astm.org.
(i) ASTM D1976-20, “Standard Test Method for Elements in Water by Inductively-Coupled Plasma Atomic Emission Spectroscopy,” approved May 1, 2020.
(ii) [Reserved]
[FR Doc. 2021-27858 Filed 12-23-21; 8:45 am]
BILLING CODE 6560-50-P
This action finalizes the residual risk and technology review (RTR) conducted for the Primary Copper Smelting major source category regulated under national emission standards for hazardous air pollutants (NESHAP). This action also finalizes the technology review for the Primary Copper Smelting area source NESHAP. The final amendments for the major source NESHAP include particulate matter (PM) emission standards as a surrogate for metal hazardous air pollutants (HAP) other than mercury (primarily lead and arsenic) for anode refining point sources, process fugitive emissions from roofline vents, Hoboken converter process fugitive capture systems where they combine with anode refining point sources, and new converters. We are also finalizing emission standards for previously unregulated HAP including mercury, benzene, toluene, hydrogen chloride (HCl), chlorine, polycyclic aromatic hydrocarbons (PAH), and dioxins and furans (D/F). In addition, we are taking final action in the major source NESHAP to establish work practice standards for bypass stacks, and add a new emissions limit for lead and emissions control design standards to minimize process fugitive emissions at facilities with flash furnaces and Peirce-Smith converters. Final amendments for both the major source NESHAP and the area source NESHAP include removing exemptions and associated provisions for periods of startup, shutdown, and malfunction (SSM), specifying that the emission standards apply at all times, and requiring electronic reporting of performance test results and notification of compliance reports.
DATES: This final rule is effective May 13, 2024, except for changes to §63.14, which are effective July 15, 2024. This final rule is published in the Federal Register May 13, 2024, page 41648.
View final rule.
§63.14 Incorporations by reference. | ||
(f)(1) and (i)(95), (105), and (110) | Revised | View text |
(o) | Added | View text |
§63.14 Incorporations by reference. (Effective July 15, 20240 | ||
(f)(1) and (i)(110) | Revised | View text |
(o) | Revised | View text |
Subpart QQQ - National Emission Standards for Hazardous Air Pollutants for Primary Copper Smelting | ||
Entire subpart | Revised | View text |
§63.11147 What are the standards and compliance requirements for existing sources not using batch copper converters? | ||
(b)(6), (c)(1) and (5), (d), and (e) | Revised | View text |
§63.11148 What are the standards and compliance requirements for existing sources using batch copper converters? | ||
(a)(1), (a)(3)(ii), (a)(4)(iv), (b)(1), (b)(2)(i), (b)(4), (c)(2) and (4), (e)(3), (f)(1), (f)(4)(ii) and (iii), (f)(5), (g), and (h) | Revised | View text |
§63.11149 What are the standards and compliance requirements for new sources? | ||
Entire section | Revised | View text |
§63.11151 What definitions apply to this subpart? | ||
definition “Blowing” | Added | View text |
definition “Capture system” | Revised | View text |
§63.11152 Who implements and enforces this subpart? | ||
(c) introductory text | Revised | View text |
undesignated paragraph after paragraph (c)(5) | Removed | View text |
(c)(6) | Added | View text |
Table 1 to Subpart EEEEEE of Part 63 - Applicability of General Provisions to Subpart EEEEEE | ||
Entire table | Revised | View text |
New Text
§63.14 Incorporations by reference. (Effective July 15, 20240
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(f) * * *
(1) ANSI/ASME PTC 19.10-1981, Flue and Exhaust Gas Analyses [Part 10, Instruments and Apparatus], issued August 31, 1981, IBR approved for §§63.116(c); 63.116 and (h); 63.128(a); 63.145(i); 63.309(k); 63.365(b); 63.457(k); 63.490(g); 63.772(e) and (h); 63.865(b); 63.997(e); 63.1282(d) and (g); 63.1450(a), (b), and (e) through (g); 63.1625(b); table 5 to subpart EEEE; §§63.3166(a); 63.3360(e); 63.3545(a); 63.3555(a); 63.4166(a); 63.4362(a); 63.4766(a); 63.4965(a); 63.5160(d); table 4 to subpart UUUU; table 3 to subpart YYYY; §§63.7822(b); 63.7824(e); 63.7825(b); 63.8000(d); 63.9307(c); 63.9323(a); 63.9621(b) and (c); 63.11148(e); 63.11155(e); 63.11162(f); 63.11163(g); 63.11410(j); 63.11551(a); 63.11646(a); 63.11945; table 4 to subpart AAAAA; table 5 to subpart DDDDD; table 4 to subpart JJJJJ; table 4 to subpart KKKKK; table 4 to subpart SSSSS; tables 4 and 5 to subpart UUUUU; table 1 to subpart ZZZZZ; table 4 to subpart JJJJJJ.
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(i) * * *
(110) ASTM D7520-16, Standard Test Method for Determining the Opacity of a Plume in the Outdoor Ambient Atmosphere, approved April 1, 2016; IBR approved for §§63.1450(c), (e), and (g); 63.1453(h); 63.1625(b); table 3 to subpart LLLLL; §§63.7823(c) through (f), 63.7833(g); 63.11423(c).
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(o) U.S. Environmental Protection Agency, 1200 Pennsylvania Avenue NW., Washington, DC 20460, (202) 272-0167, http://www.epa.gov.
(1) EPA/100/R-10/005, Recommended Toxicity Equivalence Factors (TEFs) for Human Health Risk Assessments of 2, 3, 7, 8-Tetrachlorodibenzo-p-dioxin and Dioxin-Like Compounds, December 2010; IBR approved for §63.1459 and table 2 to subpart QQQ. (Available at https://www.epa.gov/sites/default/files/2013-09/documents/tefs-for-dioxin-epa-00-r-10-005-final.pdf).
(2) EPA-453/R-08-002, Protocol for Determining the Daily Volatile Organic Compound Emission Rate of Automobile and Light-Duty Truck Primer-Surfacer and Topcoat, published September 2008, IBR approved for §§63.3130(c), 63.3161(d) and (g), 63.3165(e), and appendix A to subpart IIII.
(3) EPA-453/R-01-005, National Emission Standards for Hazardous Air Pollutants (NESHAP) for Integrated Iron and Steel Plants - Background Information for Proposed Standards, Final Report, January 2001, IBR approved for §63.7491(g).
(4) EPA-454/B-08-002, Quality Assurance Handbook for Air Pollution Measurement Systems; Volume IV: Meteorological Measurements, Version 2.0 (Final), Issued March 2008, IBR approved for §63.7792(b).
(5) EPA-454/R-98-015, Office of Air Quality Planning and Standards (OAQPS), Fabric Filter Bag Leak Detection Guidance, September 1997, https://nepis.epa.gov/Exe/ZyPDF.cgi?Dockey=2000D5T6.PDF, IBR approved for §§63.548(e), 63.864(e), 63.7525(j), 63.8450(e), 63.8600(e), 63.9632(a), 63.9804(f), and 63.11224(f).
(6) EPA-454/R-99-005, Office of Air Quality Planning and Standards (OAQPS), Meteorological Monitoring Guidance for Regulatory Modeling Applications, February 2000, IBR approved for appendix A to this part: Method 325A.
(7) EPA/600/R-12/531, EPA Traceability Protocol for Assay and Certification of Gaseous Calibration Standards, May 2012, IBR approved for §63.2163(b).
(8) EPA-625/3-89-016, Interim Procedures for Estimating Risks Associated with Exposures to Mixtures of Chlorinated Dibenzo-p-Dioxins and -Dibenzofurans (CDDs and CDFs) and 1989 Update, March 1989. IBR approved for §63.1513(d).
(9) SW-846-0011, Sampling for Selected Aldehyde and Ketone Emissions from Stationary Sources, Revision 0, December 1996, in EPA Publication No. SW-846, Test Methods for Evaluating Solid Waste, Physical/Chemical Methods, Third Edition, IBR approved for table 4 to subpart DDDD.
(10) SW-846-3020A, Acid Digestion of Aqueous Samples And Extracts For Total Metals For Analysis By GFAA Spectroscopy, Revision 1, July 1992, in EPA Publication No. SW-846, Test Methods for Evaluating Solid Waste, Physical/Chemical Methods, Third Edition, IBR approved for table 6 to subpart DDDDD and table 5 to subpart JJJJJJ.
(11) SW-846-3050B, Acid Digestion of Sediments, Sludges, and Soils, Revision 2, December 1996, in EPA Publication No. SW-846, Test Methods for Evaluating Solid Waste, Physical/Chemical Methods, Third Edition, IBR approved for table 6 to subpart DDDDD and table 5 to subpart JJJJJJ.
(12) SW-846-5030B, Purge-And-Trap For Aqueous Samples, Revision 2, December 1996, in EPA Publication No. SW-846, Test Methods for Evaluating Solid Waste, Physical/Chemical Methods, Third Edition, IBR approved for §63.2492(b) and (c).
(13) SW-846-5031, Volatile, Nonpurgeable, Water-Soluble Compounds by Azeotropic Distillation, Revision 0, December 1996, in EPA Publication No. SW-846, Test Methods for Evaluating Solid Waste, Physical/Chemical Methods, Third Edition, IBR approved for §63.2492(b) and (c).
(14) SW-846-8015C, Nonhalogenated Organics by Gas Chromatography, Revision 3, February 2007, in EPA Publication No. SW-846, Test Methods for Evaluating Solid Waste, Physical/Chemical Methods, Third Edition, IBR approved for §§63.11960, 63.11980, and table 10 to subpart HHHHHHH.
(15) SW-846-8260B, Volatile Organic Compounds by Gas Chromatography/Mass Spectrometry (GC/MS), Revision 2, December 1996, in EPA Publication No. SW-846, Test Methods for Evaluating Solid Waste, Physical/Chemical Methods, Third Edition, IBR approved for §§63.1107(a), 63.11960, 63.11980, and table 10 to subpart HHHHHHH.
(16) SW-846-8270D, Semivolatile Organic Compounds by Gas Chromatography/Mass Spectrometry (GC/MS), Revision 4, February 2007, in EPA Publication No. SW-846, Test Methods for Evaluating Solid Waste, Physical/Chemical Methods, Third Edition, IBR approved for §§63.1107(a), 63.11960, 63.11980, and table 10 to subpart HHHHHHH.
(17) SW-846-8315A, Determination of Carbonyl Compounds by High Performance Liquid Chromatography (HPLC), Revision 1, December 1996, in EPA Publication No. SW-846, Test Methods for Evaluating Solid Waste, Physical/Chemical Methods, Third Edition, IBR approved for §§63.11960 and 63.11980, and table 10 to subpart HHHHHHH.
(18) SW-846-8260D, Volatile Organic Compounds By Gas Chromatography/Mass Spectrometry, Revision 4, June 2018, in EPA Publication No. SW-846, Test Methods for Evaluating Solid Waste, Physical/Chemical Methods, Third Edition, IBR approved for §63.2492(b) and (c).
(19) SW-846-6010C, Inductively Coupled Plasma-Atomic Emission Spectrometry, Revision 3, February 2007, in EPA Publication No. SW-846, Test Methods for Evaluating Solid Waste, Physical/Chemical Methods, Third Edition, IBR approved for table 6 to subpart DDDDD.
(20) SW-846-6020A, Inductively Coupled Plasma-Mass Spectrometry, Revision 1, February 2007, in EPA Publication No. SW-846, Test Methods for Evaluating Solid Waste, Physical/Chemical Methods, Third Edition, IBR approved for table 6 to subpart DDDDD.
(21) SW-846-7060A, Arsenic (Atomic Absorption, Furnace Technique), Revision 1, September 1994, in EPA Publication No. SW-846, Test Methods for Evaluating Solid Waste, Physical/Chemical Methods, Third Edition, IBR approved for table 6 to subpart DDDDD.
(22) SW-846-7740, Selenium (Atomic Absorption, Furnace Technique), Revision 0, September 1986, in EPA Publication No. SW-846, Test Methods for Evaluating Solid Waste, Physical/Chemical Methods, Third Edition, IBR approved for table 6 to subpart DDDDD.
(23) SW-846-9056, Determination of Inorganic Anions by Ion Chromatography, Revision 1, February 2007, in EPA Publication No. SW-846, Test Methods for Evaluating Solid Waste, Physical/Chemical Methods, Third Edition, IBR approved for table 6 to subpart DDDDD.
(24) SW-846-9076, Test Method for Total Chlorine in New and Used Petroleum Products by Oxidative Combustion and Microcoulometry, Revision 0, September 1994, in EPA Publication No. SW-846, Test Methods for Evaluating Solid Waste, Physical/Chemical Methods, Third Edition, IBR approved for table 6 to subpart DDDDD.
(25) SW-846-9250, Chloride (Colorimetric, Automated Ferricyanide AAI), Revision 0, September 1986, in EPA Publication No. SW-846, Test Methods for Evaluating Solid Waste, Physical/Chemical Methods, Third Edition, IBR approved for table 6 to subpart DDDDD.
(26) Method 200.8, Determination of Trace Elements in Waters and Wastes by Inductively Coupled Plasma - Mass Spectrometry, Revision 5.4, 1994, IBR approved for table 6 to subpart DDDDD.
(27) Method 1631 Revision E, Mercury in Water by Oxidation, Purge and Trap, and Cold Vapor Atomic Absorption Fluorescence Spectrometry, Revision E, EPA-821-R-02-019, August 2002, IBR approved for table 6 to subpart DDDDD.
(28) SW-846-9250, Chloride (Colorimetric, Automated Ferricyanide AAI), Revision 0, September 1986, in EPA Publication No. SW-846, Test Methods for Evaluating Solid Waste, Physical/Chemical Methods, Third Edition, IBR approved for table 6 to subpart DDDDD.
(29) Method 200.8, Determination of Trace Elements in Waters and Wastes by Inductively Coupled Plasma—Mass Spectrometry, Revision 5.4, 1994, IBR approved for table 6 to subpart DDDDD.
(30) Method 1631 Revision E, Mercury in Water by Oxidation, Purge and Trap, and Cold Vapor Atomic Absorption Fluorescence Spectrometry, Revision E, EPA-821-R-02-019, August 2002, IBR approved for table 6 to subpart DDDDD.
(31) EPA/100/R-10/005, Recommended Toxicity Equivalence Factors (TEFs) for Human Health Risk Assessments of 2, 3, 7, 8-Tetrachlorodibenzo-p-dioxin and Dioxin-Like Compounds, December 2010; IBR approved for §63.1459 and table 2 to subpart QQQ. (Available at https://www.epa.gov/sites/default/files/2013-09/documents/tefs-for-dioxin-epa-00-r-10-005-final.pdf.)
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Previous Text
§63.14 Incorporations by reference.
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(f) * * *
(1) ANSI/ASME PTC 19.10-1981, Flue and Exhaust Gas Analyses [Part 10, Instruments and Apparatus], issued August 31, 1981; IBR approved for §§63.309(k); 63.365(b); 63.457(k); 63.772(e) and (h); 63.865(b); 63.997(e); 63.1282(d) and (g); 63.1625(b); table 5 to subpart EEEE; §§63.3166(a); 63.3360(e); 63.3545(a); 63.3555(a); 63.4166(a); 63.4362(a); 63.4766(a); 63.4965(a); 63.5160(d); table 4 to subpart UUUU; table 3 to subpart YYYY; §§63.7822(b); 63.7824(e); 63.7825(b); 63.8000(d); 63.9307(c); 63.9323(a); 63.9621(b) and (c); 63.11148(e); 63.11155(e); 63.11162(f); 63.11163(g); 63.11410(j); 63.11551(a); 63.11646(a); 63.11945; table 4 to subpart AAAAA; table 5 to subpart DDDDD; table 4 to subpart JJJJJ; table 4 to subpart KKKKK; table 4 to subpart SSSSS; tables 4 and 5 of subpart UUUUU; table 1 to subpart ZZZZZ; and table 4 to subpart JJJJJJ.
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(i) * * *
(95) ASTM D6420-99 (Reapproved 2010), Standard Test Method for Determination of Gaseous Organic Compounds by Direct Interface Gas Chromatography-Mass Spectrometry, Approved October 1, 2010, IBR approved for §§63.670(j), Table 4 to subpart UUUU, 63.7142(b), and appendix A to this part: Method 325B.
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(105) ASTM D6784–16, Standard Test Method for Elemental, Oxidized, Particle-Bound and Total Mercury in Flue Gas Generated from Coal-Fired Stationary Sources (Ontario Hydro Method), Approved March 1, 2016; IBR approved for §§63.9621(d); table 5 to subpart UUUUU; appendix A to subpart UUUUU.
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(110) ASTM D7520-16, Standard Test Method for Determining the Opacity of a Plume in the Outdoor Ambient Atmosphere, approved April 1, 2016; IBR approved for §§63.1625(b); table 3 to subpart LLLLL; 63.7823(c) through (e), 63.7833(g); 63.11423(c).
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Subpart QQQ - National Emission Standards for Hazardous Air Pollutants for Primary Copper Smelting
§63.1440 What is the purpose of this subpart?
This subpart establishes national emission standards for hazardous air pollutants (NESHAP) for primary copper smelters. This subpart also establishes requirements to demonstrate initial and continuous compliance with all applicable emission limitations, work practice standards, and operation and maintenance requirements in this subpart.
§63.1441 Am I subject to this subpart?
You are subject to this subpart if you own or operate a primary copper smelter that is (or is part of) a major source of hazardous air pollutant (HAP) emissions and your primary copper smelter uses batch copper converters as defined in §63.1459. Your primary copper smelter is a major source of HAP if it emits or has the potential to emit any single HAP at the rate of 10 tons or more per year or any combination of HAP at a rate of 25 tons or more per year.
§63.1442 What parts of my plant does this subpart cover?
(a) This subpart applies to each new and existing affected source at your primary copper smelter. The affected sources are each copper concentrate dryer, each smelting furnace, each slag cleaning vessel, each copper converter department, and the entire group of fugitive emission sources, as defined in §63.1459.
(b) An affected source at your primary copper smelter is existing if you commenced construction or reconstruction of the affected source before April 20, 1998.
(c) An affected source at your primary copper smelter is new if you commenced construction or reconstruction of the affected source on or after April 20, 1998. An affected source is reconstructed if it meets the definition of “reconstruction” in §63.2.
§63.1443 When do I have to comply with this subpart?
(a) If you have an existing affected source, you must comply with each emission limitation, work practice standard, and operation and maintenance requirement in this subpart that applies to you no later than June 13, 2005.
(b) If you have a new affected source and its initial startup date is on or before June 12, 2002, you must comply with each emission limitation, work practice standard, and operation and maintenance requirement in this subpart that applies to you by June 12, 2002.
(c) If you have a new affected source and its initial startup date is after June 12, 2002, you must comply with each emission limitation, work practice standard, and operation and maintenance requirement in this subpart that applies to you upon initial startup.
(d) If your primary copper smelter is an area source that becomes a major source of HAP, the compliance dates listed in paragraphs (d)(1) and (2) of this section apply to you.
(1) Any portion of the existing primary copper smelter that is a new affected source or a new reconstructed source must be in compliance with this subpart upon startup.
(2) All other parts of the primary copper smelter must be in compliance with this subpart no later than 3 years after it becomes a major source.
(e) You must meet the notification and schedule requirements in §63.1454. Several of these notifications must be submitted before the compliance date for your affected source.
§63.1444 What emissions limitations and work practice standards must I meet for my copper concentrate dryers, smelting furnaces, slag cleaning vessels, and copper converter departments?
(a) Copper concentrate dryers. For each copper concentrate dryer, you must comply with the emission limitation in paragraph (a)(1) or (2) of this section that applies to you.
(1) For each existing copper concentrate dryer, you must not cause to be discharged to the atmosphere from the dryer vent any gases that contain total particulate matter in excess of 50 milligrams per dry standard cubic meter (mg/dscm) as measured using the test methods specified in §63.1450(a).
(2) For each new copper concentrate dryer, you must not cause to be discharged to the atmosphere from the dryer vent any gases that contain total particulate matter in excess of 23 mg/dscm as measured using the test methods specified in §63.1450(a).
(b) Smelting furnaces. For each smelting furnace, you must comply with the emission limitations and work practice standards in paragraphs (b)(1) and (2) of this section.
(1) For each smelting furnace, you must not cause to be discharged to the atmosphere any process off-gas that contains nonsulfuric acid particulate matter in excess of 6.2 mg/dscm as measured using the test methods specified in §63.1450(b). Process off-gas from a smelting furnace is generated when copper ore concentrates and fluxes are being smelted to form molten copper matte and slag layers.
(2) For each smelting furnace, you must control the process fugitive emissions released when tapping copper matte or slag from the smelting furnace according to paragraphs (b)(2)(i) and (ii) of this section.
(i) At all times when copper matte or slag is tapped from the smelting furnace, you must operate a capture system that collects the gases and fumes released from the tapping port in use. The design and placement of this capture system must be such that the tapping port opening, launder, and receiving vessel (e.g., ladle, slag pot) are positioned within the confines or influence of the capture system's ventilation draft during those times when the copper matte or slag is flowing from the tapping port opening.
(ii) You must not cause to be discharged to the atmosphere from the capture system used to comply with paragraph (b)(2)(i) of this section any gases that contain total particulate matter in excess of 23 mg/dscm as measured using the test methods specified in §63.1450(a).
(c) Slag cleaning vessels. For each slag cleaning vessel, you must comply with the emission limitations and work practice standards in paragraphs (c)(1) through (3) of this section that apply to you.
(1) For each slag cleaning vessel, except as provided for in paragraph (c)(2) of this section, you must not cause to be discharged to the atmosphere any process off-gas that contains nonsulfuric acid particulate matter in excess of 6.2 mg/dscm as measured using the test methods specified in §63.1450(b).
(2) As an alternative to complying with the emission limit for nonsulfuric acid particulate matter in paragraph (c)(1) of this section, for each existing slag cleaning vessel you may choose to comply with the emission limit for total particulate matter specified in this paragraph (c)(2). You must not cause to be discharged to the atmosphere any process off-gas that contains total particulate matter in excess of 46 mg/dscm as measured using the test methods specified in §63.1450(a).
(3) For each slag cleaning vessel, you must control process fugitive emissions released when tapping copper matte or slag from the slag cleaning vessel according to paragraphs (c)(3)(i) and (ii) of this section.
(i) At all times when copper matte or slag is tapped from the slag cleaning vessel, you must operate a capture system that collects the gases and fumes released from the tapping port in use. The design and placement of this capture system must be such that the tapping port opening, launder, and receiving vessel (e.g., ladle, slag pot) are positioned within the confines or influence of the capture system's ventilation draft during those times when the copper matte or slag is flowing from the tapping port opening.
(ii) You must not cause to be discharged to the atmosphere from the capture system used to comply with paragraph (c)(3)(i) of this section any gases that contain total particulate matter in excess of 23 mg/dscm as measured using the test methods specified in §63.1450(a).
(d) Existing copper converter departments. For each existing copper converter department, you must comply with the emission limitations and work practice standards in paragraphs (d)(1) through (6) of this section that apply to you.
(1) You must operate a capture system that collects the process off gas vented from each batch copper converter. At all times when one or more batch copper converters are blowing, you must operate the capture system according to the written operation and maintenance plan that has been prepared according to the requirements in §63.1447(b).
(2) If your copper converter department uses Pierce-Smith converters, the capture system design must include use of a primary hood that covers the entire mouth of the converter vessel when the copper converter is positioned for blowing. Additional hoods (e.g., secondary hoods) or other capture devices must be included in the capture system design as needed to achieve the opacity limit in paragraph (d)(4) of this section. The capture system design may use multiple intake and duct segments through which the ventilation rates are controlled independently of each other, and individual duct segments may be connected to separate control devices.
(3) If your copper converter department uses Hoboken converters, the capture system must collect all process off-gas vented during blowing through the side-flue intake on each converter vessel.
(4) You must operate the capture system such that any visible emissions exiting the roof monitors or roof exhaust fans on the building housing the copper converter department meet the opacity limit as specified in paragraphs (d)(4)(i) and (ii) of this section.
(i) The opacity of any visible emissions exiting the roof monitors or roof exhaust fans on the building housing the copper converter department must not exceed 4 percent as determined by a performance test conducted according to §63.1450(c).
(ii) The opacity limit in paragraph (d)(4)(i) of this section applies only at those times when a performance test is conducted according to §63.1450(c). The requirements for compliance with opacity and visible emission standards specified in §63.6(h) do not apply to this opacity limit.
(5) You must not cause to be discharged to the atmosphere from any Pierce-Smith converter primary hood capture system or Hoboken converter side-flue intake capture system any process off-gas that contains nonsulfuric acid particulate matter in excess of 6.2 mg/dscm as measured using the test methods specified in §63.1450(b).
(6) You must not cause to be discharged to the atmosphere from any secondary capture system any gases that contain total particulate matter in excess of 23 mg/dscm as measured using the test methods specified in §63.1450(a).
(e) New copper converter departments. For each new copper converter department for which construction commenced on or after April 20, 1998, the use of batch copper converters is prohibited.
(f) Baghouses. For each baghouse applied to meet any total particulate matter emission limit in paragraphs (a) through (d) of this section, you must operate the baghouse such that the bag leak detection system does not alarm for more than 5 percent of the total operating time in any semiannual reporting period.
(g) Venturi wet scrubbers. For each venturi wet scrubber applied to meet any total particulate matter emission limit in paragraphs (a) through (d) of this section, you must maintain the hourly average pressure drop and scrubber water flow rate at or above the minimum levels established during the initial or subsequent performance test.
(h) Other control devices. For each control device other than a baghouse or venturi wet scrubber applied to meet any total particulate matter emission limit in paragraphs (a) through (d) of this section, you must operate the control device as specified in paragraphs (h)(1) and (2) of this section.
(1) You must select one or more operating parameters, as appropriate for the control device design, that can be used as representative and reliable indicators of the control device operation.
(2) You must maintain the hourly average value for each of the selected parameters at or above the minimum level or at or below the maximum level, as appropriate for the selected parameter, established during the initial or subsequent performance test.
§63.1445 What work practice standards must I meet for my fugitive dust sources?
(a) You must control particulate matter emissions from fugitive dust sources at your primary copper smelter by operating according to a written fugitive dust control plan that has been approved by the designated authority. For the purpose of complying with this paragraph (a) you may use an existing fugitive dust control plan provided that the plan complies with the requirements of this section. A fugitive dust control plan is considered to be approved if the plan has been incorporated in your applicable State implementation plan, and the document addresses the fugitive dust sources specified in paragraph (b) of this section and includes the information specified in paragraph (c) of this section.
(b) Your fugitive dust control plan must address each of the fugitive dust emission sources listed in paragraphs (b)(1) through (6) of this section that are located at your primary copper smelter.
(1) On-site roadways used by trucks or other motor vehicles (e.g., front-end loaders) when transporting bulk quantities of fugitive dust materials. Paved roads and parking areas that are not used by these vehicles do not need to be included in the plan (e.g., employee and visitor parking lots).
(2) Unloading of fugitive dust materials from trucks or railcars.
(3) Outdoor piles used for storage of fugitive dust materials.
(4) Bedding areas used for blending copper concentrate and other feed constituents.
(5) Each transfer point in conveying systems used to transport fugitive dust materials. These points include, but are not limited to, transfer of material from one conveyor belt to another and transfer of material to a hopper or bin.
(6) Other site-specific sources of fugitive dust emissions that the Administrator or delegated permitting authority designate to be included in your fugitive dust control plan.
(c) Your fugitive dust control plan must describe the control measures you use to control fugitive dust emissions from each source addressed in the plan, as applicable and appropriate for your site conditions. Examples of control measures include, but are not limited to, locating the source inside a building or other enclosure, installing and operating a local hood capture system over the source and venting the captured gas stream to a control device, placing material stockpiles below grade, installing wind screens or wind fences around the source, spraying water on the source as weather conditions require, applying appropriate dust suppression agents on the source, or combinations of these control measures.
(d) The requirement for you to operate according to a written fugitive dust control plan must be incorporated in your operating permit that is issued by the designated permitting authority under part 70 of this chapter. A copy of your fugitive dust control plan must be sent to the designated permitting authority on or before the compliance date for your primary copper smelter, as specified in §63.1443.
§63.1446 What alternative emission limitation may I meet for my combined gas streams?
(a) For situations where you combine gas streams from two or more affected sources for discharge to the atmosphere through a single vent, you may choose to meet the requirements in paragraph (b) of this section as an alternative to complying with the individual total particulate matter emission limits specified in §63.1444 that apply to you. This alternative emission limit for a combined gas stream may be used for any combination of the affected source gas steams specified in paragraphs (a)(1) through (5) of this section.
(1) Gas stream discharged from a copper concentrate dryer vent that would otherwise be subject to §63.1444(a)(1) or (2);
(2) Gas stream discharged from a smelting furnace capture system that would otherwise be subject to §63.1444(b)(2)(ii);
(3) Process off-gas stream discharged from a slag cleaning vessel that would otherwise be subject to §63.1444(c)(2);
(4) Gas stream discharged from a slag cleaning vessel capture system that would otherwise be subject to §63.1444(c)(3)(ii); and
(5) Gas stream discharged from a batch copper converter secondary capture system that would otherwise be subject to §63.1444(d)(5).
(b) You must meet the requirements specified in paragraphs (b)(1) and (2) of this section for the combined gas stream discharged through a single vent.
(1) For each combined gas stream discharged through a single vent, you must not cause to be discharged to the atmosphere any gases that contain total particulate matter in excess of the emission limit calculated using the procedure in paragraph (b)(2) of this section and measured using the test methods specified in §63.1450(a).
(2) You must calculate the alternative total particulate matter emission limit for your combined gas stream using Equation 1 of this section. The volumetric flow rate value for each of the individual affected source gas streams that you use for Equation 1 (i.e., the flow rate of the gas stream discharged from the affected source but before this gas stream is combined with the other gas streams) is to be the average of the volumetric flow rates measured using the test method specified in §63.1450(a)(1)(ii):
Where
EAlt = Alternative total particulate matter emission limit for the combined gas stream discharged to atmosphere through a single vent (mg/dscm);
Ed = Total particulate matter emission limit applicable to copper concentrate dryer as specified in §63.1444(a)(1) or (2) (mg/dscm);
Qd = Copper concentrate dryer exhaust gas stream volumetric flow rate before being combined with other gas streams (dscm);
Esv = Total particulate matter emission limit for smelting furnace capture system as specified in §63.1444(b)(2)(ii) (mg/dscm);
Qsv = Smelting furnace capture system exhaust gas stream volumetric flow rate before being combined with other gas streams (dscm);
Escvp = Total particulate matter emission limit for slag cleaning vessel process off-gas as specified in §63.1444(c)(2) (mg/dscm);
Qscvp = Slag cleaning vessel process off-gas volumetric flow rate before being combined with other gas streams (dscm);
Escvf = Total particulate matter emission limit for slag cleaning vessel capture system as specified in §63.1444(c)(3)(ii) (mg/dscm);
Qscvf = Slag cleaning vessel capture system exhaust gas stream volumetric flow rate before being combined with other gas streams (dscm);
Ecc = Total particulate emission limit for the batch copper converter secondary capture system as specified in §63.1544(d)(5) (mg/dscm); and
Qcc = Batch copper converter capture system exhaust gas stream volumetric flow rate before being combined with other gas streams (dscm).
(c) For each baghouse applied to meet any total particulate matter emission limit in paragraph (b) of this section, you must operate the baghouse such that the bag leak detection system does not alarm for more than 5 percent of the total operating time in any semiannual reporting period.
(d) For each venturi wet scrubber applied to meet any total particulate matter emission limit in paragraph (b) of this section, you must maintain the hourly average pressure drop and scrubber water flow rate at or above the minimum levels established during the initial or subsequent performance test.
(e) For each control device other than a baghouse or venturi wet scrubber applied to meet any total particulate matter emission limit in paragraph (b) of this section, you must operate the control device as specified in paragraphs (e)(1) and (2) of this section.
(1) You must select one or more operating parameters, as appropriate for the control device design, that can be used as representative and reliable indicators of the control device operation.
(2) You must maintain the hourly average value for each of the selected parameters at or above the minimum level or at or below the maximum level, as appropriate for the selected parameter, established during the initial or subsequent performance test.
§63.1447 What are my operation and maintenance requirements?
(a) As required by §63.6(e)(1)(i), you must always operate and maintain your affected source, including air pollution control and monitoring equipment, in a manner consistent with good air pollution control practices for minimizing emissions at least to the levels required by this subpart.
(b) You must prepare and operate at all times according to a written operation and maintenance plan for each capture system and control device subject to standards in §63.1444 or §63.1446. The plan must address the requirements in paragraphs (b)(1) through (3) of this section as applicable to the capture system or control device.
(1) Preventative maintenance. You must perform preventative maintenance for each capture system and control device according to written procedures specified in your operation and maintenance plan. The procedures must include a preventative maintenance schedule that is consistent with the manufacturer's instructions for routine and long-term maintenance.
(2) Capture system inspections. You must conduct monthly inspections of the equipment components of the capture system that can affect the performance of the system to collect the gases and fumes emitted from the affected source (e.g., hoods, exposed ductwork, dampers, fans) according to written procedures specified in your operation and maintenance plan. The inspection procedure must include the requirements in paragraphs (b)(2)(i) through (iii) of this section as applicable to the capture system or control device.
(i) Observations of the physical appearance of the equipment to confirm the physical integrity of the equipment (e.g., verify by visual inspection no holes in ductwork or hoods, no flow constrictions caused by dents, or accumulated dust in ductwork).
(ii) Inspection, and if necessary testing, of equipment components to confirm that the component is operating as intended (e.g., verify by appropriate measures that flow or pressure sensors, damper plates, automated damper switches and motors are operating according to manufacture or engineering design specifications).
(iii) In the event that a defective or damaged component is detected during an inspection, you must initiate corrective action according to written procedures specified in your operation and maintenance plan to correct the defect or deficiency as soon as practicable.
(3) Copper converter department capture system operating limits. You must establish, according to the requirements in paragraph (b)(3)(i) through (iii) of this section, operating limits for the capture system that are representative and reliable indicators of the performance of capture system when it is used to collect the process off-gas vented from batch copper converters during blowing.
(i) Select operating limit parameters appropriate for the capture system design that are representative and reliable indicators of the performance of the capture system when it is used to collect the process off-gas vented from batch copper converters during blowing. At a minimum, you must use appropriate operating limit parameters that indicate the level of the ventilation draft and the damper position settings for the capture system when operating to collect the process off-gas from the batch copper converters during blowing. Appropriate operating limit parameters for ventilation draft include, but are not limited to, volumetric flow rate through each separately ducted hood, total volumetric flow rate at the inlet to control device to which the capture system is vented, fan motor amperage, or static pressure. Any parameter for damper position setting may be used that indicates the duct damper position relative to the fully open setting.
(ii) For each operating limit parameter selected in paragraph (b)(3)(i) of this section, designate the value or setting for the parameter at which the capture system operates during batch copper converter blowing. If your blister copper production operations allow for more than one batch copper converter to be operating simultaneously in the blowing mode, designate the value or setting for the parameter at which the capture system operates during each possible batch copper converter blowing configuration that you may operate at your smelter (i.e., the operating limits with one converter blowing, with two converters blowing, with three converters blowing, as applicable to your smelter).
(iii) Include documentation in the plan to support your selection of the operating limits established for the capture system. This documentation must include a description of the capture system design, a description of the capture system operation during blister copper production, a description of each selected operating limit parameter, a rationale for why you chose the parameter, a description of the method used to monitor the parameter according to the requirements in §63.1452(a), and the data used to set the value or setting for the parameter for each of your batch copper converter configurations.
(4) Baghouse leak detection corrective actions. In the event a bag leak detection system alarm is triggered, you must initiate corrective action according to written procedures specified in your operation and maintenance plan to determine the cause of the alarm within 1 hour of the alarm, initiate corrective action to correct the cause of the problem within 24 hours of the alarm, and complete the corrective action as soon as practicable. Corrective actions may include, but are not limited to, the activities listed in paragraphs (b)(3)(i) through (vi) of this section.
(i) Inspecting the baghouse for air leaks, torn or broken bags or filter media, or any other condition that may cause an increase in emissions.
(ii) Sealing off defective bags or filter media.
(iii) Replacing defective bags or filter media or otherwise repairing the control device.
(iv) Sealing off a defective baghouse compartment.
(v) Cleaning the bag leak detection system probe, or otherwise repair the bag leak detection system.
(vi) Shutting down the process producing the particulate emissions.
§63.1448 What are my general requirements for complying with this subpart?
(a) You must be in compliance with the emission limitations, work practice standards, and operation and maintenance requirements in this subpart at all times, except during periods of startup, shutdown, and malfunction as defined in §63.2.
(b) During the period between the compliance date specified for your affected source in §63.1443, and the date upon which continuous monitoring systems have been installed and certified and any applicable operating limits have been set, you must maintain a log detailing the operation and maintenance of the process and emissions control equipment.
(c) You must develop a written startup, shutdown, and malfunction plan according to the provisions in §63.6(e)(3).
§63.1449 By what dates must I conduct performance tests or other initial compliance demonstrations?
(a) As required in §63.7(a)(2), you must conduct a performance test within 180 calendar days of the compliance date that is specified in §63.1443 for your affected source to demonstrate initial compliance with each emission and opacity limit in §§63.1443 and 63.1446 that applies to you.
(b) For each work practice standard and operation and maintenance requirement that applies to you where initial compliance is not demonstrated using a performance test or opacity observation, you must demonstrate initial compliance within 30 calendar days after the compliance date that is specified for your affected source in §63.1443.
§63.1450 What test methods and other procedures must I use to demonstrate initial compliance with the emission limitations?
(a) Total particulate matter emission limits. You must conduct each performance test to determine compliance with the total particulate matter emission limits in §63.1444 or §63.1446 that apply to you according to the requirements for representative test conditions specified in §63.7(e)(1) and using the test methods and procedures in paragraphs (a)(1) through (5) of this section.
(1) Determine the concentration of total particulate matter according to the test methods in appendix A to part 60 of this chapter as specified in paragraphs (a)(1)(i) through (iii) of this section.
(i) Method 1 to select sampling port locations and the number of traverse points. Sampling ports must be located at the outlet of the control device and prior to any releases to the atmosphere.
(ii) Method 2, 2F, or 2G to determine the volumetric flow rate of the stack gas.
(iii) Method 3, 3A, or 3B to determine the dry molecular weight of the stack gas.
(iv) Method 4 to determine the moisture content of the stack gas.
(v) Method 5, 5D, or 17, as applicable, to determine the concentration of total particulate matter. You can also use ASTM D4536-96 incorporated by reference in §63.14 as an alternative to the sampling equipment and operating procedures in Method 5 or 17 when testing a positive pressure baghouse, but you must use the sample traverse location and number of sampling points described in Method 5D.
(2) As an alternative to using the applicable method specified in paragraph (a)(1)(v) of this section, you may determine total particulate matter emissions from the control device using Method 29 in appendix A of part 60 of this chapter provided that you follow the procedures and precautions prescribed in Method 29. If the control device is a positive pressure baghouse, you must also follow the measurement procedure specified in sections 4.1 through 4.3 of Method 5D.
(3) You must conduct three separate test runs for each performance test. Each test run must have a minimum sampling time of 60 minutes and a minimum sampling volume of 0.85 dscm. For the purpose of determining compliance with the applicable total particulate matter emission limit, the arithmetic mean of the results for the three separate test runs is used.
(4) For a venturi wet scrubber applied to emissions from an affected source and subject to operating limits in §63.1444(g) or §63.1446(d) for pressure drop and scrubber water flow rate, you must establish site-specific operating limits according to the procedures in paragraph (a)(4)(i) and (ii) of this section.
(i) Using the continuous parameter monitoring system (CPMS) required in §63.1452, measure and record the pressure drop and scrubber water flow rate during each run of the particulate matter performance test.
(ii) Compute and record the hourly average pressure drop and scrubber water flow rate for each individual test run. Your operating limits are the lowest average pressure drop and scrubber water flow rate value in any of the three runs that meet the applicable emission limit.
(5) For a control device other than a baghouse or venturi wet scrubber applied to emissions from an affected source and subject to site-specific operating limit(s) in §63.1444(h) or §63.1446(e) for appropriate, site-specific operating parameters that are representative and reliable indicators of the control device performance, you must establish a site-specific operating limit(s) according to the procedures in paragraph (a)(5)(i) through (iv) of this section.
(i) Select one or more operating parameters, as appropriate for the control device design, that can be used as representative and reliable indicators of the control device operation.
(ii) Using the CPMS required in §63.1452, measure and record the selected operating parameters for the control device during each run of the total particulate matter performance test.
(iii) Compute and record the hourly average value for each of the selected operating parameters for each individual test run. Your operating limits are the lowest value or the highest value, as appropriate for the selected operating parameter, measured in any of the three runs that meet the applicable emission limit.
(iv) You must prepare written documentation to support your selection of the operating parameters used for the control device. This documentation must include a description of each selected parameter, a rationale for why you chose the parameter, a description of the method used to monitor the parameter, and the data recorded during the performance test and used to set the operating limit(s).
(b) Nonsulfuric acid particulate matter emission limits. You must conduct each performance test to determine compliance with the nonsulfuric acid particulate matter emission limits in §63.1444 that apply to you according to the requirements for representative test conditions specified in §63.7(e)(1) and using the test methods and procedures in paragraphs (b)(1) and (2) of this section.
(1) Determine the concentration of nonsulfuric acid particulate matter according to the test methods in appendix A to part 60 of this chapter as specified in paragraphs (b)(1)(i) through (v) of this section.
(i) Method 1 to select sampling port locations and the number of traverse points. Sampling ports must be located at the outlet of the control device and prior to any releases to the atmosphere.
(ii) Method 2, 2F, or 2G to determine the volumetric flow rate of the stack gas.
(iii) Method 3, 3A, or 3B to determine the dry molecular weight of the stack gas.
(iv) Method 4 to determine the moisture content of the stack gas.
(v) Method 5B to determine the nonsulfuric acid particulate matter emissions.
(2) You must conduct three separate test runs for each performance test. Each test run must have a minimum sampling time of 240 minutes and a minimum sampling volume of 3.4 dscm. For the purpose of determining compliance with the nonsulfuric acid particulate matter emission limit, the arithmetic mean of the results for the three separate test runs is used.
(c) Copper converter department capture system opacity limit. You must conduct each performance test to determine compliance with the opacity limit in §63.1444 using the test methods and procedures in paragraphs (c)(1) through (9) of this section.
(1) You must conduct the performance test during the period when the primary copper smelter is operating under conditions representative of the smelter's normal blister copper production rate. You may not conduct a performance test during periods of startup, shutdown, or malfunction. Before conducting the performance test, you must prepare a written test plan specifying the copper production conditions to be maintained throughout the opacity observation period and including a copy of the written documentation you have prepared according to paragraph (a)(3) of this section to support the established operating limits for the copper converter department capture system. You must submit a copy of the test plan for review and approval by the Administrator or delegated authority. During the observation period, you must collect appropriate process information and copper converter department capture system operating information to prepare documentation sufficient to verify that all opacity observations were made during the copper production and capture system operating conditions specified in the approved test plan.
(2) You must notify the Administrator or delegated authority before conducting the opacity observations to allow the Administrator or delegated authority the opportunity to have authorized representatives attend the test. Written notification of the location and scheduled date for conducting the opacity observations must be received by the Administrator on or before 30 calendar days before this scheduled date.
(3) You must gather the data needed for determining compliance with the opacity limit using qualified visible emission observers and process monitors as described in paragraphs (c)(3)(i) and (ii) of this section.
(i) Opacity observations must be performed by a sufficient number of qualified visible emission observers to obtain two complete concurrent sets of opacity readings for the required observation period. Each visible emission observer must be certified as a qualified observer by the procedure specified in section 3 of Method 9 in appendix A of part 60 of this chapter. The entire set of readings during the required observation period does not need to be made by the same two observers. More than two observers may be used to allow for substitutions and provide for observer rest breaks. The owner or operator must obtain proof of current visible emission reading certification for each observer.
(ii) A person (or persons) familiar with the copper production operations conducted at the smelter must serve as the indoor process monitor. The indoor process monitor is stationed at a location inside the building housing the batch copper converters such that he or she can visually observe and record operations that occur in the batch copper converter aisle during the times that the visible emission observers are making opacity readings. More than one indoor process monitor may be used to allow for substitutions and provide for rest breaks.
(4) You must make all opacity observations using Method 9 in appendix A to part 60 of this chapter and following the procedures described in paragraphs (c)(4)(i) and (ii) of this section.
(i) Each visible emission observer must make his or her readings at a position from the outside of the building that houses the copper converter department such that the observer's line-of-sight is approximately perpendicular to the longer axis of the converter building, and the observer has an unobstructed view of the building roof monitor sections or roof exhaust fan outlets that are positioned over each of the batch copper converters inside the building. Opacity readings can only be made during those times when the observer's position meets the sun orientation and other conditions specified in section 2.1 of Method 9.
(ii) At 15-second intervals, each visible emission observer views the building roof monitor sections or roof exhaust fan outlets that are positioned over each of the batch copper converters inside the building and reads the opacity of the visible plumes. If no plume is visible, the observer records zero as the opacity value for the 15-second interval. In situations when it is possible for an observer to distinguish two or more visible emission plumes from the building roof monitor sections or roof exhaust fan outlets, the observer must identify, to the extent feasible, the plume having the highest opacity and record his or her opacity reading for that plume as the opacity value for the 15-second interval.
(5) You must make opacity observations for a period of sufficient duration to obtain a minimum of 120 1-minute intervals during which at least one copper converter is blowing and no interferences have occurred from other copper production events, as specified in paragraph (c)(7) of this section, which generate visible emissions inside the building that potentially can interfere with the visible emissions from the converter capture systems as seen by the outside observers. To obtain the required number of 1-minute intervals, the observation period may be divided into two or more segments performed on the same day or on different days if conditions prevent the required number of opacity readings from being obtained during one continuous time period. Examples of these conditions include, but are not limited to, changes in the sun's orientation relative to visible emission observers' positions such that the Method 9 conditions are no longer met or an unexpected thunder storm. If the total observation period is divided into two or more segments, all opacity observations must be made during the same set of copper production conditions described in your approved test plan as required by paragraph (c)(1) of this section.
(6) You must gather indoor process information during all times that the visible emission observers are making opacity readings outside the building housing the copper converter department. The indoor process monitor must continually observe the operations occurring in the copper converter department and prepare a written record of his or her observations using the procedure specified in paragraphs (c)(6)(i) through (iv) of this section.
(i) At the beginning of each observation period or segment, the clock time setting on the watch or clock to be used by the indoor process monitor must be synchronized with the clock time settings for the timepieces to be used by the outdoor opacity observers.
(ii) During each period or segment when opacity readings are being made by the visible emission observers, the indoor process monitor must continuously observe the operations occurring in the copper converter department and record his or her observations in a log book, on data sheets, or other type of permanent written format.
(iii) When a batch copper converter is blowing, a record must be prepared for the converter that includes, but is not limited to, the clock times for when blowing begins and when blowing ends and the converter blowing rate. This information may be recorded by the indoor process monitor or by a separate, automated computer data system.
(iv) The process monitor must record each event other than converter blowing that occurs in or nearby the converter aisle that he or she observes to generate visible emissions inside the building. The recorded entry for each event must include, but is not limited to, a description of the event and the clock times when the event begins and when the event ends.
(7) You must prepare a summary of the data for the entire observation period using the information recorded during the observation period by the outdoor visible emission observers and the indoor process monitor and the procedure specified in paragraphs (c)(7)(i) through (iv) of this section.
(i) Using the field data sheets, identify the 1-minute clock times for which a total of eight opacity readings were made and recorded by both observers at 15-second intervals according to the test procedures (i.e., a total of four opacity values have been recorded for the 1-minute interval by each of the two observers). Calculate the average of the eight 15-second interval readings recorded on the field data sheets by the two observers during the clock time minute interval (add the four consecutive 15-second interval opacity readings made by Observer A during the specified clock time minute, plus the four consecutive 15-second interval opacity readings made by Observer B during the same clock time minute, and divide the resulting total by eight). Record the clock time and the opacity average for the 1-minute interval on a data summary sheet. Figure 1 of this subpart shows an example of the format for the data summary sheet you may use, but are not required to use.
(ii) Using the data summary sheets prepared according to paragraph (c)(7)(i) of this section and the process information recorded according to paragraph (c)(6)(iii) of this section, identify those 1-minute intervals for which at least one of the batch copper converters was blowing.
(iii) Using the data summary sheets prepared according to paragraph (c)(7)(ii) of this section and the process information recorded according to paragraph (c)(6)(iv) of this section, identify the 1-minute intervals during which at least one copper converter was blowing but none of the interference events listed in paragraphs (c)(7)(iii)(A) through (F) of this section occurred. Other ancillary activities not listed but conducted in or adjacent to the converter aisle during the opacity observations are not considered to be interference events (e.g., converter aisle cleaning, placement of smoking ladles or skulls on the converter aisle floor).
(A) Charging of copper matte, reverts, or other materials to a batch copper converter;
(B) Skimming slag or other molten materials from a batch copper converter;
(C) Pouring of blister copper or other molten materials from a batch copper converter;
(D) Return of slag or other molten materials to the flash smelting furnace or slag cleaning vessel;
(E) Roll-out or roll-in of the batch copper converter; or
(F) Smoke and fumes generated inside the converter building by operation of the smelting furnace, the slag cleaning vessel (if used), anode refining and casting processes that drift into the copper converter department.
(iv) Using the data summary sheets prepared according to paragraph (c)(7)(iii) of this section, up to five 1-minute intervals following an interference event may be eliminated from data used for the compliance determination calculation specified in paragraph (c)(8) of this section by applying a time delay factor. The time delay factor must be a constant number of minutes not to exceed 5 minutes that is added to the clock time recorded when cessation of the interference event occurs. The same time delay factor must be used for all interference events (i.e., a constant time delay factor for the smelter of 1 minute, 2 minutes, 3 minutes, 4 minutes, or 5 minutes). The number of minutes to be used for the time delay factor is determined based on the site-specific equipment and converter building configuration. An explanation of the rationale for selecting the value used for the time delay factor must be prepared and included in the test report.
(8) You must use the data summary prepared in paragraph (c)(7) of this section to calculate the average opacity value for a minimum of 120 1-minute intervals during which at least one copper converter was blowing with no interference events as determined according to paragraphs (c)(7)(iii) and (iv) of this section. Average opacity is calculated using Equation 1 of this section:
Where
VEave = Average opacity to be used for compliance determination (percent);
n = Total number of 1-minute intervals during which at least one copper converter was blowing with no interference events as determined according to paragraphs (c)(7)(iii) and (iv) of this section (at least 120 1-minute intervals);
i = 1-minute interval “i” during which at least one copper converter was blowing with no interference events as determined according to paragraphs (c)(7)(iii) and (iv) of this section; and
VEi = Average opacity value calculated for the eight opacity readings recorded during 1-minute interval “i” (percent).
(9) You must certify that the copper converter department capture system operated during the performance test at the operating limits established in your capture system operation and maintenance plan using the procedure specified in paragraphs (c)(9)(i) through (iv) of this section.
(i) Concurrent with all opacity observations, measure and record values for each of the operating limit parameters in your capture system operation and maintenance plan according to the monitoring requirements specified in §63.1452(a).
(ii) For any dampers that are manually set and remain in the same position at all times the capture system is operating, the damper position must be visually checked and recorded at the beginning and end of each opacity observation period segment.
(iii) Review the recorded monitoring data. Identify and explain any times during batch copper converter blowing when the capture system operated outside the applicable operating limits.
(iv) Certify in your performance test report that during all observation period segments, the copper converter department capture system was operating at the values or settings established in your capture system operation and maintenance plan.
§63.1451 How do I demonstrate initial compliance with the emission limitations, work practice standards, and operation and maintenance requirements that apply to me?
(a) Total particulate matter emission limits. For each copper concentrate dryer, smelting furnace, slag cleaning vessel, and copper converter department subject to a total particulate matter emission limits in §63.1444 or §63.1446 that applies to you, you have demonstrated initial compliance if you meet both of the conditions in paragraphs (a)(1) and (2) of this section.
(1) The average concentration of total particulate matter from a control device applied to emissions from the affected source, measured according to the performance test procedures in §63.1450(a), did not exceed the applicable emission limit.
(2) You have submitted a notification of compliance status according to the requirements in §63.1454(e).
(b) Nonsulfuric acid particulate matter emissions limits. For each smelting furnace, slag cleaning vessel, and copper converter departments subject to the nonsulfuric acid particulate matter emissions limit in §63.1444 as applies to you, you have demonstrated initial compliance if you meet both of the conditions in paragraphs (b)(1) and (2) of this section.
(1) The average concentration of nonsulfuric acid particulate matter in the process off-gas discharged from the affected source, measured according to the performance test procedures in §63.1450(b), did not exceed 6.2 mg/dscm.
(2) You have submitted a notification of compliance status according to the requirements in §63.1454(e).
(c) For each existing copper converter department subject to the opacity limit in §63.1444, you have demonstrated initial compliance if you meet both of the conditions in paragraphs (c)(1) and (2) of this section.
(1) The opacity of visible emissions exiting the roof monitors or roof exhaust fans on the building housing the copper converter department measured according to the performance test procedures in §63.1450(c), did not exceed 4 percent opacity.
(2) You have submitted a notification of compliance status according to the requirements in §63.1454(e).
(d) Copper converter department capture systems. You have demonstrated initial compliance of the copper converter department capture system if you meet all of the conditions in paragraphs (d)(1) through (4) of this section.
(1) Prepared the capture system operation and maintenance plan according to the requirements of paragraph (a) of this section;
(2) Conducted an initial performance test according to the procedures of §63.1450(c) demonstrating the opacity of any visible emissions exiting the roof monitors or roof exhaust fans on the building housing the copper converter department does not exceed 4 percent opacity;
(3) Included in your notification of compliance status a copy of your written capture system operation and maintenance plan and have certified in your notification of compliance status that you will operate the copper converter department capture system at all times during blowing at the values or settings established for the operating limits in that plan; and
(4) Submitted a notification of compliance status according to the requirements in §63.1454(e).
(e) Baghouses. For each baghouse subject to operating limits in §63.1444(f) or §63.1446(c), you have demonstrated initial compliance if you meet all of the conditions in paragraphs (e)(1) through (3) of this section.
(1) You have included in your written operation and maintenance plan required under §63.1447(b) detailed descriptions of the procedures you use for inspection, maintenance, bag leak detection, and corrective action for the baghouse.
(2) You have certified in your notification of compliance status that you will operate the baghouse according to your written operation and maintenance plan.
(3) You have submitted the notification of compliance status according to the requirements in §63.1454(e).
(f) Venturi wet scrubbers. For each venturi wet scrubber subject to operating limits in §63.1444(g) or §63.1446(d), you have demonstrated initial compliance if you meet all of the conditions in paragraphs (f)(1) through (3) of this section.
(1) Established site-specific operating limits for pressure drop and scrubber water flow rate and have a record of the pressure drop and scrubber water flow rate measured during the performance test you conduct to demonstrate initial compliance with paragraph (a) of this section.
(2) Certified in your notification of compliance status that you will operate the venturi wet scrubber within the established operating limits for pressure drop and scrubber water flow rate.
(3) Submitted a notification of compliance status according to the requirements in §63.1454(e).
(g) Other control devices. For each control device other than a baghouse or venturi wet scrubber subject to operating limits in §63.1444(h) or §63.1446(e), you have demonstrated initial compliance if you meet all of the conditions in paragraphs (g)(1) through (4) of this section.
(1) Selected one or more operating parameters, as appropriate for the control device design, that can be used as representative and reliable indicators of the control device operation.
(2) Established site-specific operating limits for each of the selected operating parameters based on values measured during the performance test you conduct to demonstrate initial compliance with paragraph (a) of this section and have prepared written documentation according to the requirements in §63.1450(a)(5)(iv).
(3) Included in your notification of compliance status a copy of the written documentation you have prepared to demonstrate compliance with paragraph (g)(2) of this section and have certified in your notification of compliance status that you will operate the control device within the established operating limits.
(4) Submitted a notification of compliance status according to the requirements in §63.1454(e).
(h) Fugitive dust sources. For all fugitive dust sources subject to work practice standards in §63.1445, you have demonstrated initial compliance if you meet all of the conditions in paragraphs (i)(1) through (3) of this section.
(1) Prepared a written fugitive dust control plan according to the requirements in §63.1454 and it has been approved by the designated authority.
(2) Certified in your notification of compliance status that you will control emissions from the fugitive dust sources according to the procedures in the approved plan.
(3) Submitted the notification of compliance status according to the requirements in §63.1454(e).
(i) Operation and maintenance requirements. You have demonstrated initial compliance with the operation and maintenance requirements that apply to you if you meet all of the conditions in paragraphs (i)(1) through (3) of this section.
(1) Prepared an operation and maintenance plan according to the requirements in §63.1454(b).
(2) Certified in your notification of compliance status that you will operate each capture system and control device according to the procedures in the plan.
(3) Submitted the notification of compliance status according to the requirements in §63.1454(e).
§63.1452 What are my monitoring requirements?
(a) Copper converter department capture systems. For each operating limit established under your capture system operation and maintenance plan, you must install, operate, and maintain an appropriate monitoring device according the requirements in paragraphs (a)(1) though (6) of this section to measure and record the operating limit value or setting at all times the copper converter department capture system is operating during batch copper converter blowing. Dampers that are manually set and remain in the same position at all times the capture system is operating are exempted from the requirements of this paragraph (a).
(1) Install the monitoring device, associated sensor(s), and recording equipment according to the manufacturers' specifications. Locate the sensor(s) used for monitoring in or as close to a position that provides a representative measurement of the parameter being monitored.
(2) If a flow measurement device is used to monitor the operating limit parameter, you must meet the requirements in paragraph (a)(2)(i) through (iv) of this section.
(i) Locate the flow sensor and other necessary equipment such as straightening vanes in a position that provides a representative flow.
(ii) Use a flow sensor with a minimum tolerance of 2 percent of the flow rate.
(iii) Reduce swirling flow or abnormal velocity distributions due to upstream and downstream disturbances.
(iv) Conduct a flow sensor calibration check at least semiannually.
(3) If a pressure measurement device is used to monitor the operating limit parameter, you must meet the requirements in paragraph (a)(3)(i) through (v) of this section.
(i) Locate the pressure sensor(s) in or as close to a position that provides a representative measurement of the pressure.
(ii) Minimize or eliminate pulsating pressure, vibration, and internal and external corrosion.
(iii) Use a gauge with a minimum tolerance of 0.5 inch of water or a transducer with a minimum tolerance of 1 percent of the pressure range.
(iv) Check pressure tap pluggage daily.
(v) Using a manometer, check gauge calibration quarterly and transducer calibration monthly.
(4) Conduct calibration and validation checks any time the sensor exceeds the manufacturer's specifications or you install a new sensor.
(5) At least monthly, inspect all components for integrity, all electrical connections for continuity, and all mechanical connections for leakage.
(6) Record the results of each inspection, calibration, and validation check.
(b) Baghouses. For each baghouse subject to the operating limit in §63.1444(f) or §63.1446(c) for the bag leak detection system alarm, you must at all times monitor the relative change in particulate matter loadings using a bag leak detection system according to the requirements in paragraph (b)(1) of this section and conduct regular inspections according to the requirements in paragraph (b)(2) of this section.
(1) You must install, operate, and maintain each bag leak detection system according to the requirements in paragraphs (b)(1)(i) through (vii) of this section.
(i) The system must be certified by the manufacturer to be capable of detecting emissions of particulate matter at concentrations of 10 milligrams per actual cubic meter (0.0044 grains per actual cubic foot) or less.
(ii) The system must provide output of relative changes in particulate matter loadings.
(iii) The system must be equipped with an alarm that will sound when an increase in relative particulate loadings is detected over a preset level. The alarm must be located such that it can be heard by the appropriate plant personnel.
(iv) Each system that works based on the triboelectric effect must be installed, operated, and maintained in a manner consistent with the guidance document, “Fabric Filter Bag Leak Detection Guidance,” EPA-454/R-98-015, September 1997. You may obtain a copy of this guidance document by contacting the National Technical Information Service (NTIS) at 800-553-6847. You may install, operate, and maintain other types of bag leak detection systems in a manner consistent with the manufacturer's written specifications and recommendations.
(v) To make the initial adjustment of the system, establish the baseline output by adjusting the sensitivity (range) and the averaging period of the device. Then, establish the alarm set points and the alarm delay time.
(vi) Following the initial adjustment, do not adjust the sensitivity or range, averaging period, alarm set points, or alarm delay time, except as detailed in your operation and maintenance plan. Do not increase the sensitivity by more than 100 percent or decrease the sensitivity by more than 50 percent over a 365-day period unless a responsible official certifies, in writing, that the baghouse has been inspected and found to be in good operating condition.
(vii) Where multiple detectors are required, the system's instrumentation and alarm may be shared among detectors.
(2) You must conduct baghouse inspections at their specified frequencies according to the requirements in paragraphs (b)(2)(i) through (viii) of this section.
(i) Monitor the pressure drop across each baghouse cell each day to ensure pressure drop is within the normal operating range identified in the manual.
(ii) Confirm that dust is being removed from hoppers through weekly visual inspections or other means of ensuring the proper functioning of removal mechanisms.
(iii) Check the compressed air supply for pulse-jet baghouses each day.
(iv) Monitor cleaning cycles to ensure proper operation using an appropriate methodology.
(v) Check bag cleaning mechanisms for proper functioning through monthly visual inspection or equivalent means.
(vi) Make monthly visual checks of bag tension on reverse air and shaker-type baghouses to ensure that bags are not kinked (kneed or bent) or laying on their sides. You do not have to make this check for shaker-type baghouses using self-tensioning (spring-loaded) devices.
(vii) Confirm the physical integrity of the baghouse through quarterly visual inspections of the baghouse interior for air leaks.
(viii) Inspect fans for wear, material buildup, and corrosion through quarterly visual inspections, vibration detectors, or equivalent means.
(c) Venturi wet scrubbers. For each venturi wet scrubber subject to the operating limits for pressure drop and scrubber water flow rate in §63.1444(g) or §63.1446(d), you must at all times monitor the hourly average pressure drop and water flow rate using a CPMS. You must install, operate, and maintain each CPMS according to the requirements in paragraphs (c)(1) and (2) of this section.
(1) For the pressure drop CPMS, you must meet the requirements in paragraphs (c)(1)(i) through (vi) of this section.
(i) Locate the pressure sensor(s) in or as close to a position that provides a representative measurement of the pressure and that minimizes or eliminates pulsating pressure, vibration, and internal and external corrosion.
(ii) Use a gauge with a minimum measurement sensitivity of 0.5 inch of water or a transducer with a minimum measurement sensitivity of 1 percent of the pressure range.
(iii) Check the pressure tap for pluggage daily.
(iv) Using a manometer, check gauge calibration quarterly and transducer calibration monthly.
(v) Conduct calibration checks any time the sensor exceeds the manufacturer's specified maximum operating pressure range, or install a new pressure sensor.
(vi) At least monthly, inspect all components for integrity, all electrical connections for continuity, and all mechanical connections for leakage.
(2) For the scrubber water flow rate CPMS, you must meet the requirements in paragraphs (c)(2)(i) through (iv) of this section.
(i) Locate the flow sensor and other necessary equipment in a position that provides a representative flow and that reduces swirling flow or abnormal velocity distributions due to upstream and downstream disturbances.
(ii) Use a flow sensor with a minimum measurement sensitivity of 2 percent of the flow rate.
(iii) Conduct a flow sensor calibration check at least semiannually according to the manufacturer's instructions.
(iv) At least monthly, inspect all components for integrity, all electrical connections for continuity, and all mechanical connections for leakage.
(d) Other control devices. For each control device other than a baghouse or venturi wet scrubber subject to the operating limits for appropriate parameters in §63.1444(h) or §63.1446(e), you must at all times monitor each of your selected parameters using an appropriate CPMS. You must install, operate, and maintain each CPMS according to the equipment manufacturer's specifications and the requirements in paragraphs (d)(1) though (5) of this section.
(1) Locate the sensor(s) used for monitoring in or as close to a position that provides a representative measurement of the parameter being monitored.
(2) Determine the hourly average of all recorded readings.
(3) Conduct calibration and validation checks any time the sensor exceeds the manufacturer's specifications or you install a new sensor.
(4) At least monthly, inspect all components for integrity, all electrical connections for continuity, and all mechanical connections for leakage.
(5) Record the results of each inspection, calibration, and validation check.
(e) Except for monitoring malfunctions, associated repairs, and required quality assurance or control activities (including as applicable, calibration checks and required zero and span adjustments), you must monitor continuously (or collect data at all required intervals) at all times an affected source is operating.
(f) You may not use data recorded during monitoring malfunctions, associated repairs, and required quality assurance or control activities in data averages and calculations used to report emission or operating levels or to fulfill a minimum data availability requirement, if applicable. You must use all the data collected during all other periods in assessing compliance.
(g) A monitoring malfunction is any sudden, infrequent, not reasonably preventable failure of the monitor to provide valid data. Monitoring failures that are caused in part by poor maintenance or careless operation are not malfunctions.
§63.1453 How do I demonstrate continuous compliance with the emission limitations, work practice standards, and operation and maintenance requirements that apply to me?
(a) Particulate matter emission limits. For each affected source subject to a particulate matter emission limit §63.1444 or §63.1446 as applies to you, you must demonstrate continuous compliance according to the requirements in paragraphs (a)(1) and (2) of this section.
(1) For each copper concentrate dryer, smelting furnace, slag cleaning vessel, and copper converter department subject to a total particulate matter emission limit in §63.1444 or §63.1446 as applies to you, you must demonstrate continuous compliance by meeting the conditions in paragraphs (a)(1)(i) and (ii) of this section.
(i) Maintain the average concentration of total particulate matter in the gases discharged from the affected source at or below the applicable emission limit.
(ii) Conduct subsequent performance tests following your initial performance test no less frequently than once per year according to the performance test procedures in §63.1450(a).
(2) For each smelting furnace, slag cleaning vessel, and copper converter department subject to the nonsulfuric acid particulate matter emission limit in §63.1444 as applies to you, you must demonstrate continuous compliance by meeting the conditions in paragraphs (a)(2)(i) and (ii) of this section.
(i) Maintain the average concentration of nonsulfuric acid particulate matter in the process off-gas discharged from the affected source at or below 6.2 mg/dscm.
(ii) Conduct subsequent performance tests following your initial performance test no less frequently than once per year according to the performance test procedures in §63.1450(b).
(b) Copper converter department capture systems. You must demonstrate continuous compliance of the copper converter department capture system by meeting the requirements in paragraphs (b)(1) through (4) of this section.
(1) Operate the copper converter department capture system at all times during blowing at or above the lowest values or settings established for the operating limits and demonstrated to achieve the opacity limit according to the applicable requirements of this subpart;
(2) Inspect and maintain the copper converter department capture system according to the applicable requirements in §63.1447 and recording all information needed to document conformance with these requirements;
(3) Monitor the copper converter department capture system according to the requirements in §63.1452(a) and collecting, reducing, and recording the monitoring data for each of the operating limit parameters according to the applicable requirements of this subpart; and
(4) Conduct subsequent performance tests according to the requirements of §63.1450(c) following your initial performance test no less frequently than once per year to demonstrate that the opacity of any visible emissions exiting the roof monitors or roof exhaust fans on the building housing the copper converter department does not exceed 4 percent opacity.
(c) Baghouses. For each baghouse subject to the operating limit for the bag leak detection system alarm in §63.1444(f) or §63.1446(c), you must demonstrate continuous compliance by meeting the requirements in paragraphs (c)(1) through (3) of this section.
(1) Maintain the baghouse such that the bag leak detection system alarm does not sound for more than 5 percent of the operating time during any semiannual reporting period. To determine the percent of time the alarm sounded use the procedures in paragraphs (c)(1)(i) through (v) of this section.
(i) Alarms that occur due solely to a malfunction of the bag leak detection system are not included in the calculation.
(ii) Alarms that occur during startup, shutdown, or malfunction are not included in the calculation if the condition is described in the startup, shutdown, and malfunction plan, and you operated the source during such periods in accordance with §63.6(e)(1).
(iii) Count 1 hour of alarm time for each alarm when you initiated procedures to determine the cause of the alarm within 1 hour.
(iv) Count the actual amount of time you took to initiate procedures to determine the cause of the alarm if you did not initiate procedures to determine the cause of the alarm within 1 hour of the alarm.
(v) Calculate the percentage of time the alarm on the bag leak detection system sounds as the ratio of the sum of alarm times to the total operating time multiplied by 100.
(2) Maintain records of the times the bag leak detection system alarm sounded, and for each valid alarm, the time you initiated corrective action, the corrective action(s) taken, and the date on which corrective action was completed.
(3) Inspect and maintain each baghouse according to the requirements in §63.1451(b)(2) and recording all information needed to document conformance with these requirements. If you increase or decrease the sensitivity of the bag leak detection system beyond the limits specified in §63.1451(b)(1)(vi), you must include a copy of the required written certification by a responsible official in the next semiannual compliance report.
(d) Venturi wet scrubbers. For each venturi wet scrubber subject to the operating limits for pressure drop and scrubber water flow rate in §63.1444(g) or §63.1446(d), you must demonstrate continuous compliance by meeting the requirements of paragraphs (d)(1) through (3) of this section.
(1) Maintain the hourly average pressure drop and scrubber water flow rate at levels no lower than those established during the initial or subsequent performance test;
(2) Inspect and maintain each venturi wet scrubber CPMS according to §63.1452(c) and recording all information needed to document conformance with these requirements; and
(3) Collect and reduce monitoring data for pressure drop and scrubber water flow rate according to §63.1452(e) and recording all information needed to document conformance with these requirements.
(e) Other control devices. For each control device other than a baghouse or venturi wet scrubber subject to the operating limits for site-specific operating parameters in §63.1444(h) or §63.1446(e), you must demonstrate continuous compliance by meeting the requirements of paragraphs (e)(1) through (3) of this section:
(1) Maintain the hourly average rate at levels no lower than those established during the initial or subsequent performance test;
(2) Inspect and maintain each CPMS operated according to §63.1452(d) and record all information needed to document conformance with these requirements; and
(3) Collect and reduce monitoring data for selected parameters according to §63.1452(e) and recording all information needed to document conformance with these requirements.
(f) Fugitive dust sources. For each fugitive dust source subject to work practice standards in §63.1445, you must demonstrate continuous compliance by implementing all of fugitive control measures specified for the source in your written fugitive dust control plan.
§63.1454 What notifications must I submit and when?
(a) You must submit all of the notifications in §§63.6(h)(4) and (h)(5), 63.7(b) and (c), 63.8(f)(4), and 63.9(b) through (h) that apply to you by the specified dates.
(b) As specified in §63.9(b)(2), if you start your affected source before June 12, 2002, you must submit your initial notification not later than October 10, 2002, or no later than 120 days after the source becomes subject to this subpart, whichever is later.
(c) As specified in §63.9(b)(3), if you start your new affected source on or after June 12, 2002, you must submit your initial notification not later than 120 calendar days after you become subject to this subpart.
(d) If you are required to conduct a performance test, you must submit a notification of intent to conduct a performance test at least 60 calendar days before the performance test is scheduled to begin as required in §63.7(b)(1).
(e) If you are required to conduct a performance test, opacity observation, or other initial compliance demonstration, you must submit a notification of compliance status according to §63.9(h)(2)(ii) by the date specified in paragraph (e)(1) or (2) of this section as applies to you.
(1) For each initial compliance demonstration that does not include a performance test, you must submit the notification of compliance status before the close of business on the 30th calendar day following the completion of the initial compliance demonstration.
(2) For each initial compliance demonstration that includes a performance test, you must submit the notification of compliance status, including the performance test results, before the close of business on the 60th calendar day following the completion of the performance test according to §63.10(d)(2).
§63.1455 What reports must I submit and when?
(a) You must submit each report in paragraphs (a)(1) and (2) of this section that applies to you.
(1) You must submit a compliance report semiannually according to the requirements in paragraph (b) of this section and containing the information in paragraph (c) of this section.
(2) You must submit an immediate startup, shutdown, and malfunction report if you had a startup, shutdown, or malfunction during the reporting period that is not consistent with your startup, shutdown, and malfunction plan. You must report the actions taken for the event by fax or telephone within 2 working days after starting actions inconsistent with the plan. You must submit the information in §63.10(d)(5)(ii) of this part by letter within 7 working days after the end of the event unless you have made alternative arrangements with the permitting authority.
(b) Unless the Administrator has approved a different schedule under §63.10(a), you must submit each compliance report required in paragraph (a) of this section according to the applicable requirements in paragraphs (b)(1) through (5) of this section.
(1) The first compliance report must cover the period beginning on the compliance date that is specified for your affected source in §63.1443 and ending on June 30 or December 31, whichever date comes first after the compliance date that is specified for your source in §63.1443.
(2) The first compliance report must be postmarked or delivered no later than July 31 or January 31, whichever date comes first after your first compliance report is due.
(3) Each subsequent compliance report must cover the semiannual reporting period from January 1 through June 30 or the semiannual reporting period from July 1 through December 31.
(4) Each subsequent compliance report must be postmarked or delivered no later than July 31 or January 31, whichever date comes first after the end of the semiannual reporting period.
(5) For each affected source that is subject to permitting regulations pursuant to 40 CFR part 70 or 40 CFR part 71, and if the permitting authority has established dates for submitting semiannual reports pursuant to 40 CFR 70.6(a)(3)(iii)(A) or 40 CFR 71.6(a)(3)(iii)(A) of this chapter, you may submit the first and subsequent compliance reports according to the dates the permitting authority has established instead of according to the dates in paragraphs (b)(1) through (4) of this section.
(c) Each compliance report must contain the information in paragraphs (c)(1) through (3) of this section and, as applicable, paragraphs (c)(4) through (8) of this section.
(1) Company name and address.
(2) Statement by a responsible official, as defined in 40 CFR 63.2, with that official's name, title, and signature, certifying the accuracy and completeness of the content of the report.
(3) Date of report and beginning and ending dates of the reporting period.
(4) If you had a startup, shutdown or malfunction during the reporting period and you took actions consistent with your startup, shutdown, and malfunction plan, the compliance report must include the information in §63.10(d)(5)(i).
(5) If there are no deviations from any emission limitations (emission limit, operating limit, opacity limit) that applies to you and there are no deviations from the requirements for work practice standards in this subpart, a statement that there were no deviations from the emission limitations, work practice standards, or operation and maintenance requirements during the reporting period.
(6) If there were no periods during which an operating parameter monitoring system was out-of-control as specified in §63.8(c)(7), a statement that there were no periods during which the monitoring system was out-of-control during the reporting period.
(7) For each deviation from an emission limitation (emission limit, operating limit, opacity limit) and for each deviation from the requirements for work practice standards that occurs at an affected source where you are not using a continuous monitoring system to comply with the emission limitations or work practice standards in this subpart, the compliance report must contain the information in paragraphs (b)(1) through (4) of this section and the information in paragraphs (b)(7)(i) and (ii) of this section. This includes periods of startup, shutdown, and malfunction.
(i) The total operating time of each affected source during the reporting period.
(ii) Information on the number, duration, and cause of deviations (including unknown cause, if applicable), as applicable, and the corrective action taken.
(8) For each deviation from an emission limitation (emission limit, operating limit, opacity limit, and visible emission limit) occurring at an affected source where you are using an operating parameter monitoring system to comply with the emission limitation in this subpart, you must include the information in paragraphs (b)(1) through (4) of this section and the information in paragraphs (c)(8)(i) through (xi) of this section. This includes periods of startup, shutdown, and malfunction.
(i) The date and time that each malfunction started and stopped.
(ii) The date and time that each monitoring system was inoperative, except for zero (low-level) and high-level checks.
(iii) The date, time and duration that each monitoring system was out-of-control, including the information in §63.8(c)(8).
(iv) The date and time that each deviation started and stopped, and whether each deviation occurred during a period of startup, shutdown, or malfunction or during another period.
(v) A summary of the total duration of the deviation during the reporting period and the total duration as a percent of the total source operating time during that reporting period.
(vi) A breakdown of the total duration of the deviations during the reporting period into those that are due to startup, shutdown, control equipment problems, process problems, other known causes, and other unknown causes.
(vii) A summary of the total duration of monitoring system downtime during the reporting period and the total duration of monitoring system downtime as a percent of the total source operating time during that reporting period.
(viii) A brief description of the process units.
(ix) A brief description of the monitoring system.
(x) The date of the latest monitoring system certification or audit.
(xi) A description of any changes in continuous monitoring systems, processes, or controls since the last reporting period.
(d) If you have obtained a Title V operating permit pursuant to 40 CFR part 70 or 40 CFR part 71 must report all deviations as defined in this subpart in the semiannual monitoring report required by 40 CFR 70.6(a)(3)(iii)(A) or 40 CFR 71.6(a)(3)(iii)(A). If you submit a compliance report pursuant to paragraph (a) of this section along with, or as part of, the semiannual monitoring report required by 40 CFR 70.6(a)(3)(iii)(A) or 40 CFR 71.6(a)(3)(iii)(A), and the compliance report includes all required information concerning deviations from any emission limitation(including any operating limit), or work practice requirement in this subpart, submission of the compliance report is deemed to satisfy any obligation to report the same deviations in the semiannual monitoring report. However, submission of a compliance report does not otherwise affect any obligation you may have to report deviations from permit requirements to the permit authority.
§63.1456 What records must I keep and how long must I keep my records?
(a) You must keep the records listed in paragraphs (a)(1) through (7) of this section.
(1) A copy of each notification and report that you submitted to comply with this subpart, including all documentation supporting any initial notification or notification of compliance status that you submitted, according to the requirements in §63.10(b)(2)(xiv).
(2) The records in §63.6(e)(3)(iii) through (v) related to startup, shutdown, and malfunction.
(3) Records of performance tests and performance evaluations as required in §63.10(b)(2)(viii).
(4) For each monitoring system, you must keep the records specified in paragraphs (a)(4)(i) through (iv) of this section.
(i) Records described in §63.10(b)(2)(vi) through (xi).
(ii) Monitoring data recorded by the monitoring system during a performance evaluation as required in §63.6(h)(7)(i) and (ii).
(iii) Previous (i.e., superseded) versions of the performance evaluation plan as required in §63.8(d)(3).
(iv) Records of the date and time that each deviation started and stopped, and whether the deviation occurred during a period of startup, shutdown, or malfunction or during another period.
(5) For each performance test you conduct to demonstrate compliance with an opacity limit according to §63.1450(c), you must keep the records specified in paragraphs (a)(5)(i) through (ix) of this section.
(i) Dates and time intervals of all opacity observation period segments;
(ii) Description of overall smelter operating conditions during each observation period. Identify, if any, the smelter copper production process equipment that was out-of-service during the performance test and explain why this equipment was not in operation;
(iii) Name, affiliation, and copy of current visible emission reading certification for each visible emission observer participating in the performance test;
(iv) Name, title, and affiliation for each indoor process monitor participating in the performance test;
(v) Copies of all visible emission observer opacity field data sheets;
(vi) Copies of all indoor process monitor operating log sheets;
(vii) Copies of all data summary sheets used for data reduction;
(viii) Copy of calculation sheets of the average opacity value used to demonstrate compliance with the opacity limit; and
(ix) Documentation according to the requirements in §63.1450(c)(9)(iv) to support your selection of the site-specific capture system operating limits used for each batch copper converter capture system when blowing.
(6) For each baghouse subject to the operating limit in §63.1444(f) or §63.1446(c), you must keep the records specified in paragraphs (a)(6)(i) and (ii) of this section.
(i) Records of alarms for each bag leak detection system.
(ii) Description of the corrective actions taken following each bag leak detection alarm.
(7) For each control device other than a baghouse or venturi wet scrubber subject to site-specific operating limits in §63.1444(g) or §63.1446(f), you must keep documentation according to the requirements in §63.1450(a)(5)(iv) to support your selection of the site-specific operating limits for the control device.
(b) Your records must be in a form suitable and readily available for expeditious review, according to §63.10(b)(1).
(c) As specified in §63.10(b)(1), you must keep each record for 5 years following the date of each occurrence, measurement, maintenance, corrective action, report, or record.
(d) You must keep each record on site for at least 2 years after the date of each occurrence, measurement, maintenance, corrective action, report, or record, according to §63.10(b)(1). You can keep the records off site for the remaining 3 years.
§63.1457 What part of the general provisions apply to me?
Table 2 to this subpart shows which parts of the general provisions in §§63.1 through 63.15 apply to you.
§63.1458 Who implements and enforces this subpart?
(a) This subpart can be implemented and enforced by us, the United States Environmental Protection Agency (U.S. EPA), or a delegated authority such as your State, local, or tribal agency. If the U.S. EPA Administrator has delegated authority to your State, local, or tribal agency, then that agency has the authority to implement and enforce this subpart. You should contact your U.S. EPA Regional Office to find out if this subpart is delegated to your State, local, or tribal agency.
(b) In delegating implementation and enforcement authority of this subpart to a State, local, or tribal agency under 40 CFR part 63, subpart E, the authorities listed in paragraph (c) of this section are retained by the U.S. EPA Administrator and are not transferred to the State, local, or tribal agency.
(c) The authorities that will not be delegated to State, local, or tribal agencies are as listed in paragraphs (c)(1) through (4) of this section.
(1) Approval of alternatives to the emission limitations and work practice standards in §§63.1444 through 63.1446 under §63.6(g).
(2) Approval of major alternatives to test methods under §63.7(f) and as defined in §63.90.
(3) Approval of major alternatives to monitoring under §63.8(f) and as defined in §63.90.
(4) Approval of major alternatives to recordkeeping and reporting under §63.10(f) and as defined in §63.90.
§63.1459 What definitions apply to this subpart?
Terms used in this subpart are defined in the Clean Air Act, in §63.2, and in this section as follows:
Bag leak detection system means a system that is capable of continuously monitoring relative particulate matter (dust) loadings in the exhaust of a baghouse in order to detect bag leaks and other upset conditions. A bag leak detection system includes, but is not limited to, an instrument that operates on triboelectric, light scattering, transmittance or other effect to continuously monitor relative particulate matter loadings.
Baghouse means a control device that collects particulate matter by filtering the gas stream through bags. A baghouse is also referred to as a “fabric filter.”
Batch copper converter means a Pierce-Smith converter or Hoboken converter in which copper matte is oxidized to form blister copper by a process that is performed in discrete batches using a sequence of charging, blowing, skimming, and pouring.
Blowing means the operating mode for a batch copper converter during which air or oxygen-enriched air is injected into the molten converter bath.
Capture system means the collection of components used to capture gases and fumes released from one or more emission points, and to convey the captured gases and fumes to a control device. A capture system may include, but is not limited to, the following components as applicable to a given capture system design: duct intake devices, hoods, enclosures, ductwork, dampers, manifolds, plenums, and fans.
Charging means the operating mode for a batch copper converter during which molten or solid material is added into the vessel.
Control device means the air pollution control equipment used to collect particulate matter emissions. Examples of such equipment include, but are not limited to, a baghouse, an electrostatic precipitator, and a wet scrubber.
Copper concentrate dryer means a vessel in which copper concentrates are heated in the presence of air to reduce the moisture content of the material. Supplemental copper-bearing feed materials and fluxes may be added or mixed with the copper concentrates fed to a copper concentrate dryer.
Copper converter department means the area at a primary copper smelter in which the copper converters are located.
Copper matte means a material predominately composed of copper and iron sulfides produced by smelting copper ore concentrates.
Deviation means any instance in which an affected source subject to this subpart or an owner or operator of such a source fails to meet any of the following:
(1) Any requirement or obligation established by this subpart including, but not limited to, any emission limitation (including any operating limit) or work practice standard;
(2) Any term or condition that is adopted to implement an applicable requirement in this subpart and that is included in the operating permit for any affected source required to obtain such a permit; or
(3) Any emission limitation (including any operating limit) or work practice standard in this subpart during startup, shutdown, or malfunction, regardless whether or not such failure is permitted by this subpart.
Emission limitation means any emission limit, opacity limit, operating limit, or visible emission limit.
Fugitive dust material means copper concentrate, dross, reverts, slag, speiss, or other solid copper-bearing materials.
Fugitive dust source means a stationary source of particulate matter emissions resulting from the handling, storage, transfer, or other management of fugitive dust materials where the source is not associated with a specific process, process vent, or stack. Examples of a fugitive dust source include, but are not limited to, on-site roadways used by trucks transporting copper concentrate, unloading of materials from trucks or railcars, outdoor material storage piles, and transfer of material to hoppers and bins.
Holding means the operating mode for a batch copper converter during which the molten bath is maintained in the vessel but no blowing is performed nor is material added into or removed from the vessel.
Opacity means the degree to which emissions reduce the transmission of light.
Particulate matter means any finely divided solid or liquid material, other than uncombined water, as measured by the specific reference method.
Pouring means the operating mode for a batch copper converter during which molten copper is removed from the vessel.
Primary copper smelter means any installation or any intermediate process engaged in the production of copper from copper sulfide ore concentrates through the use of pyrometallurgical techniques.
Responsible official means responsible official as defined in 40 CFR 70.2.
Skimming means the batch copper converter operating mode during which molten slag is removed from the vessel.
Slag cleaning vessel means a vessel that receives molten copper-bearing material and the predominant use of the vessel is to separate this material into molten copper matte and slag layers.
Smelting furnace means a furnace, reactor, or other type of vessel in which copper ore concentrate and fluxes are melted to form a molten mass of material containing copper matte and slag. Other copper-bearing materials may also be charged to the smelting furnace.
Work practice standard means any design, equipment, work practice, or operational standard, or combination thereof, that is promulgated pursuant to section 112(h) of the Clean Air Act.
Table 1 to Subpart QQQ of Part 63 - Applicability of General Provisions to Subpart QQQ
As required in §63.1457, you must comply with the requirements of the NESHAP General Provisions (40 CFR part 63, subpart A) shown in the following table:
Citation | Subject | Applies to subpart QQQ | Explanation |
---|---|---|---|
§63.1 | Applicability | Yes | |
§63.2 | Definitions | Yes | |
§63.3 | Units and Abbreviations | Yes | |
§63.4 | Prohibited Activities | Yes | |
§63.5 | Construction and Reconstruction | Yes | |
§63.6(a)-(g) | Compliance with Standards and Maintenance requirements | Yes | |
§63.6(h) | Determining compliance with Opacity and VE standards | No | Subpart QQQ specifies the requirements and test protocol used to determine compliance with the opacity limits. |
§63.6(i)-(j) | Extension of Compliance and Presidential Compliance Exemption | Yes | |
§63.7(a)(1)-(2) | Applicability and Performance Test Dates | No | Subpart QQQ specifies performance test applicability and dates. |
§63.7(a)(3), (b)-(h) | Performance Testing Requirements | Yes | |
§63.8 except for (a)(4),(c)(4), and (f)(6) | Monitoring Requirements | Yes | |
§63.8(a)(4) | Additional Monitoring Requirements for Control devices in §63.11 | No | Subpart QQ does not require flares. |
§63.8(c)(4) | Continuous Monitoring System Requirements | No | Subpart QQQ specifies requirements for operation of CMS. |
§63.8(f)(6) | RATA Alternative | No | Subpart QQQ does not require continuous emission monitoring systems. |
§63.9 | Notification Requirements | Yes | |
§63.9(g)(5) | DATA reduction | No | Subpart QQQ specifies data reduction requirements |
§63.10 except for (b)(2)(xiii) and (c)(7)-(8) | Recordkeeping and reporting Requirements | Yes | |
§63.10(b)(2)(xiii) | CMS Records for RATA Alternative | No | Subpart QQQ does not require continuous emission monitoring systems. |
§63.10(c)(7)-(8) | Records of Excess Emissions and Parameter Monitoring Accedences for CMS | No | Subpart QQQ specifies record keeping requirements |
§63.11 | Control Device Requirements | No | Subpart QQQ does not require flares |
§63.12 | State Authority and Delegations | Yes | |
§§63.13-63.15 | Addresses, Incorporation by Reference, Availability of Information | Yes |
§63.11147 What are the standards and compliance requirements for existing sources not using batch copper converters?
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(b) * * *
(6) You must submit to the permitting authority by the 20th day of each month a report summarizing the 24-hour average mass PM10 emissions rates for the previous month.
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* * * * *
(c) * * * (1) At all times, including periods of startup, shutdown, and malfunction, you must to the extent practicable, maintain and operate any affected source, including associated air pollution control equipment, in a manner consistent with good air pollution control practice for minimizing emissions. Determination of whether acceptable operating and maintenance procedures are being used will be based on information available to the permitting authority which may include, but is not limited to, monitoring results, opacity observations, review of operating and maintenance procedures, and inspection of the source.
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(5) As an alternative to the requirements in paragraph (c)(4) of this section, you must comply with the startup, shutdown, and malfunction requirements in 40 CFR 63.6(e)(3).
(d) Deviations. You must submit written notification to the permitting authority of any deviation from the requirements of this subpart, including the probable cause of such deviations and any corrective actions or preventative measures taken. You must submit this notification within 14 days of the date the deviation occurred.
(e) Reports. You must submit semiannual monitoring reports to your permitting authority. All instances of deviations from the requirements of this subpart must be clearly identified in the reports.
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§63.11148 What are the standards and compliance requirements for existing sources using batch copper converters?
(a) * * * (1) For each copper concentrate dryer, you must not discharge to the atmosphere from the dryer vent any gases that contain total particulate matter (PM) in excess of 0.022 grains per dry standard cubic foot (gr/dscf).
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(3) * * *
(ii) During periods when no copper ore concentrate feed is charged to the smelting vessel but the smelting vessel remains in operation to temporarily hold molten material in the vessel before resuming copper production, you must exhaust the process off gas from the smelting vessel to an electrostatic precipitator, wet scrubber, or baghouse prior to discharge to the atmosphere.
(4) * * *
(iv) For each secondary capture system that is used to comply with paragraph (a)(4)(ii) of this section and is not vented to a gas cleaning system controlling PM and a sulfuric acid plant, you must not cause to be discharged to the atmosphere any gases that contain total particulate matter in excess of 0.02 grains/dscf.
(b) * * *
(1) Each COMS must meet Performance Specification 1 in 40 CFR part 60, appendix B.
(2) * * *
(i) You must automatically (intrinsic to the opacity monitor) check the zero and upscale (span) calibration drifts at least once daily. For a particular COMS, the acceptable range of zero and upscale calibration materials is as defined in the applicable version of Performance Specification 1 in 40 CFR part 60, appendix B.
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(4) You must log in ink or electronic format and maintain a record of 24-hour opacity measurements performed in accordance with paragraph (b)(3) of this section and any corrective actions taken, if any. A record of corrective actions taken must include the date and time during which the 24-hour rolling average opacity exceeded 15 percent and the date, time and type of the corrective action.
(c) * * *
(2) The baghouse leak detection system must meet the specifications and requirements in paragraphs (c)(2)(i) through (v) of this section.
(i) The bag leak detection system must be certified by the manufacturer to be capable of detecting particulate matter emissions at concentrations that can effectively discern any dysfunctional leaks of the baghouse.
(ii) The bag leak detection system sensor must provide output of relative or absolute particulate matter loadings.
(iii) The bag leak detection system must be equipped with an alarm system that will sound automatically when an increase in relative particulate emissions over a preset level is detected. The alarm must be located where it is easily heard by plant operating personnel.
(iv) The bag leak detection system must be installed downstream of the baghouse.
(v) The bag leak detection system must be installed, operated, calibrated, and maintained in a manner consistent with the manufacturer's written specifications and recommendations. The calibration of the system must, at a minimum, consist of establishing the relative baseline output level by adjusting the sensitivity and the averaging period of the device and establishing the alarm set points and the alarm delay time.
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(4) You must log in ink or electronic format and maintain a record of installation, calibration, maintenance, and operation of the bag leak detection system. If the bag leak detection system alarm sounds, the records must include an identification of the date and time of all bag leak detection alarms, their cause, and an explanation of the corrective actions taken, if any.
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(e) * * *
(3) You must conduct each performance test according to §63.7(e)(1) using the test methods and procedures in paragraphs (e)(3)(i) through (v) of this section.
(i) Method 1 or 1A (40 CFR part 60, appendix A) to select sampling port locations and the number of traverse points in each stack or duct. Sampling sites must be located at the outlet of the control device (or at the outlet of the emissions source if no control device is present) prior to any releases to the atmosphere.
(ii) Method 2, 2A, 2C, 2D, 2F, or 2G (40 CFR part 60, appendix A) to determine the volumetric flow rate of the stack gas.
(iii) Method 3, 3A, or 3B (40 CFR part 60, appendix A) to determine the dry molecular weight of the stack gas. You may use ANSI/ASME PTC 19.10-1981, “Flue and Exhaust Gas Analyses” (incorporated by reference - see §63.14) as an alternative to EPA Method 3B.
(iv) Method 4 (40 CFR part 60, appendix A) to determine the moisture content of the stack gas.
(v) Method 5 (40 CFR part 60, appendix A) to determine the PM concentration for negative pressure baghouses or Method 5D (40 CFR part 60, appendix A) for positive pressure baghouses. A minimum of three valid test runs are needed to comprise a PM performance test.
(f) * * * (1) At all times, including periods of startup, shutdown, and malfunction, you must to the extent practicable, maintain and operate any affected source, including associated air pollution control equipment, in a manner consistent with good air pollution control practice for minimizing emissions. Determination of whether acceptable operating and maintenance procedures are being used will be based on information available to the permitting authority which may include, but is not limited to, monitoring results, opacity observations, review of operating and maintenance procedures, and inspection of the source.
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(4) * * *
(ii) You must document through signed contemporaneous logs or other relevant evidence that an emergency occurred and you can identify the probable cause, your facility was being operated properly at the time the emergency occurred, and the corrective actions taken to minimize emissions as required by paragraph (f)(4)(i) of this section.
(iii) You must submit a notice of the emergency to the permitting authority within two working days of the time when emission limitations were exceeded due to the emergency (or an alternate timeframe acceptable to the permitting authority). This notice must contain a description of the emergency, any steps taken to mitigate emissions, and corrective actions taken.
(5) As an alternative to the requirements in paragraph (f)(4) of this section, you must comply with the startup, shutdown, and malfunction requirements in 40 CFR 63.6(e)(3).
(g) Recordkeeping requirements. (1) You must maintain records of the occurrence and duration of any startup, shutdown, or malfunction in the operation of an affected source subject to this subpart; any malfunction of the air pollution control equipment; or any periods during which a continuous monitoring system or monitoring device is inoperative.
(2) You must maintain a file of all measurements, including continuous monitoring system, monitoring device, and performance testing measurements; all continuous monitoring system performance evaluations; all continuous monitoring system or monitoring device calibration checks; adjustments and maintenance performed on these systems or devices; and all other information required by this section recorded in a permanent form suitable for inspection. The file must be retained for at least 5 years following the date of such measurements, maintenance, reports.
(h) Reporting requirements. (1) You must prepare and submit to the permitting authority an excess emissions and monitoring systems performance report and summary report every calendar quarter. A less frequent reporting interval may used for either report as approved by the permitting authority.
(2) The summary report must include the information in paragraphs (h)(2)(i) through (iv) of this section.
(i) The magnitude of excess emissions computed, any conversion factor(s) used, and the date and time of commencement and completion of each time period of excess emissions. The process operating time during the reporting period.
(ii) Specific identification of each period of excess emissions that occurs during startups, shutdowns, and malfunctions of the affected facility. The nature and cause of any malfunction (if known), the corrective action taken or preventative measures adopted.
(iii) The date and time identifying each period during which the continuous monitoring system was inoperative except for zero and span checks and the nature of the system repairs or adjustments.
(iv) When no excess emissions have occurred or the continuous monitoring system(s) have not been inoperative, repaired, or adjusted, such information must be stated in the report.
§63.11149 What are the standards and compliance requirements for new sources?
(a) Emissions limits and work practice standards. (1) You must not discharge to the atmosphere exhaust gases that contain total PM in excess of 0.6 pound per ton of copper concentrate feed charged on a 24-hour average basis from any combination of stacks, vents, or other openings on furnaces, reactors, or other types of process vessels used for the production of anode copper from copper sulfide ore concentrates by pyrometallurgical techniques. Examples of such process equipment include, but are not limited to, copper concentrate dryers, smelting flash furnaces, smelting bath furnaces, converting vessels, combined smelting and converting reactors, anode refining furnaces, and anode shaft furnaces.
(2) You must operate a capture system that collects the gases and fumes released during the transfer of molten materials from smelting vessels and converting vessels and conveys the collected gas stream to a baghouse or other PM control device.
(3) You must operate one or more capture systems that collect the gases and fumes released from each vessel used to refine blister copper, remelt anode copper, or remelt anode scrap and convey each collected gas stream to a baghouse or other PM control device. One control device may be used for multiple collected gas streams.
(b) Monitoring requirements. (1) You must install, operate, and maintain a PM continuous emissions monitoring system (CEMS) to measure and record PM concentrations and gas stream flow rates for the exhaust gases discharged to the atmosphere from each affected source subject to the emissions limit in paragraph (a)(1) of this section. A single PM CEMS may be used for the combined exhaust gas streams from multiple affected sources at a point before the gases are discharged to the atmosphere. For each PM CEMS used to comply with this paragraph, you must meet the requirements in paragraphs (b)(1)(i) through (iii) of this section.
(i) You must install, certify, operate, and maintain the PM CEMS according to EPA Performance Specification 11 in 40 CFR part 60, appendix B, and the quality assurance requirements of Procedure 2 in 40 CFR part 60, appendix F.
(ii) You must conduct an initial performance evaluation of the PM CEMS according to the requirements of Performance Specification 11 in 40 CFR part 60, appendix B. Thereafter, you must perform the performance evaluations as required by Procedure 2 in 40 CFR part 60, appendix F.
(iii) You must perform quarterly accuracy determinations and daily calibration drift tests for the PM CEMS according to Procedure 2 in 40 CFR part 60, appendix F.
(2) You must install, operate, and maintain a weight measurement system to measure and record the weight of the copper concentrate feed charged to the smelting vessel on a daily basis.
(c) Compliance requirements. (1) You must demonstrate initial compliance with the emissions limit in paragraph (a)(1) of this section using the procedures in paragraph (c)(2) this section within 180 days after startup and report the results in your notification of compliance status no later than 30 days after the end of the compliance demonstration.
(2) You must demonstrate continuous compliance with the emissions limit in paragraph (a)(1) of this section using the procedures in paragraph (c)(2)(i) through (iii) of this section whenever your facility is producing copper from copper concentrate.
(i) You must continuously monitor and record PM emissions, determine and record the daily (24-hour) value for each day, and calculate and record the daily average pounds of total PM per ton of copper concentrate feed charged to the smelting vessel according to the requirements in paragraph (b) of this section.
(ii) You must calculate the daily average at the end of each calendar day for the preceding 24-hour period.
(iii) You must maintain records of the calculations of daily averages with supporting information and data, including measurements of the weight of copper concentrate feed charged to the smelting vessel. Collected PM CEMS data must be made available for inspection.
(d) Alternative startup, shutdown, and malfunction requirements. You must comply with the requirements specified in this paragraph as an alternative to the requirements in 40 CFR 63.6(e)(3). In the event of an emergency situation, you must comply with the requirements specified in paragraphs (d)(1) through (3) of this section. For the purpose of complying with this paragraph, an emergency situation is any situation arising from sudden and reasonably unforeseeable events beyond the control of the facility owner or operator that requires immediate corrective action to restore normal operation, and that causes the affected source to exceed an applicable emissions limitation under this subpart, due to unavoidable increases in emissions attributable to the emergency. An emergency must not include noncompliance to the extent it is caused by improperly designed equipment, lack of preventive maintenance, careless or improper operation, or operator error.
(1) During the period of the emergency, you must implement all reasonable steps to minimize levels of emissions that exceeded the emission standards or other applicable requirements in this subpart.
(2) You must document through signed contemporaneous logs or other relevant evidence that an emergency occurred and you can identify the probable cause, your facility was being operated properly at the time the emergency occurred, and the corrective actions taken to minimize emissions as required by paragraph (d)(1) of this section.
(3) You must submit a notice of the emergency to the permitting authority within two working days of the time when emissions limitations were exceeded due to the emergency (or an alternate timeframe acceptable to the permitting authority). This notice must contain a description of the emergency, any steps taken to mitigate emissions, and corrective actions taken.
(e) Reports. You must submit to the permitting authority by the 20th day of each month a summary of the daily average PM per ton of copper concentrate feed charged to the smelting vessel for the previous month.
§63.11151 What definitions apply to this subpart?
* * * * *
Capture system means the collection of components used to capture gases and fumes released from one or more emissions points and then convey the captured gas stream to a control device. A capture system may include, but is not limited to, the following components as applicable to a given capture system design: Duct intake devices, hoods, enclosures, ductwork, dampers, manifolds, plenums, and fans.
* * * * *
§63.11152 Who implements and enforces this subpart?
* * * * *
(c) The authorities that will not be delegated to State, local, or tribal agencies are listed in paragraphs (c)(1) through (5) of this section.
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Table 1 to Subpart EEEEEE of Part 63 - Applicability of General Provisions to Subpart EEEEEE
Citation | Subject | Applies to subpart EEEEEE? | Explanation |
---|---|---|---|
63.1(a)(1), (a)(2), (a)(3), (a)(4), (a)(6), (a)(10)-(a)(12) (b)(1), (b)(3), (c)(1), (c)(2), (c)(5), (e) | Applicability | Yes. | |
63.1(a)(5), (a)(7)-(a)(9), (b)(2), (c)(3), (c)(4), (d) | Reserved | No. | |
63.2 | Definitions | Yes. | |
63.3 | Units and Abbreviations | Yes. | |
63.4 | Prohibited Activities and Circumvention | Yes. | |
63.5 | Preconstruction Review and Notification Requirements | No. | |
63.6(a), (b)(1)-(b)(5), (b)(7), (c)(1), (c)(2), (c)(5) | Compliance with Standards and Maintenance Requirements - Applicability and Compliance Dates | Yes. | |
63.6(e) | Operation and Maintenance Requirements | Yes/No | Operation and maintenance requirements do not apply to existing sources except that the startup, shutdown, and malfunction requirements in §63.6(e)(3) are allowed as an alternative to the rule requirements for emergency situations. Operation and maintenance requirements apply to new sources except that the rule requirements for emergency situations are allowed as an alternative to the startup, shutdown, and malfunction requirements in §63.6(e)(3). |
63.6(f), (g), (i), (j) | Compliance with Nonopacity Emission Standards | Yes. | |
63.6(b)(6), (c)(3), (c)(4), (d), (e)(2), (e)(3)(ii), (h)(3), (h)(5)(iv) | Reserved | No. | |
63.6(h)(1)-(h)(4), (h)(5)(i)-(h)(5)(iii), (h)(6)-(h)(9) | Yes/No | Requirements apply to new sources but not existing sources. | |
63.7(a), (e), (f), (g), (h) | Performance Testing Requirements | Yes. | |
63.7(b), (c) | Yes/No | Notification of performance tests and quality assurance program apply to new sources but not existing sources. | |
63.8(a)(1), (a)(2), (b), (c), (f), (g) | Monitoring Requirements | Yes. | |
63.8(a)(3) | Reserved | No. | |
63.8(a)(4) | No | Subpart EEEEEE does not require flares. | |
63.8(d), (e) | Yes/No | Requirements for quality control program and performance evaluations apply to new sources but not existing sources. | |
63.9(a), (b)(1), (b)(2), (b)(5), (c), (d), (h)(1)-(h)(3), (h)(5), (h)(6), (i), (j) | Notification Requirements | Yes. | |
63.9(b)(3), (h)(4) | Reserved | No. | |
63.9(b)(4), (f) | No. | ||
63.9(e), (g) | Yes/No | Notification requirements for performance test and use of continuous monitoring systems apply to new sources but not existing sources. | |
63.10(a), (b)(1), (d)(1), (d)(2), (d)(4), (d)(5), (f) | Recordkeeping and Reporting Requirements | Yes/No | Recordkeeping requirements apply to new sources but not existing sources. |
63.10(b)(2), (b)(3), (c)(1) (c)(5)-(c)(8), (c)(10)-(c)(15), (e)(1), (e)(2) | Yes/No | Recordkeeping requirements apply to new sources but not existing sources. | |
63.10(c)(2)-(c)(4), (c)(9) | Reserved | No. | |
63.10(d)(3), (e)(4) | No | Reporting requirements apply to new sources but not existing sources. | |
63.10(e)(3) | Yes/No | Reporting requirements apply to new sources but not existing sources. | |
63.11 | Control Device Requirements | No | Subpart EEEEEE does not require flares. |
63.12 | State Authorities and Delegations | Yes. | |
63.13 | Addresses | Yes. | |
63.14 | Incorporations by Reference | Yes. | |
63.15 | Availability of Information and Confidentiality | Yes. | |
63.16 | Performance Track Provisions | Yes. |
The Environmental Protection Agency (EPA or the Agency) is finalizing a Clean Water Act regulation to revise the technology-based effluent limitations guidelines and standards (ELGs) for the steam electric power generating point source category applicable to flue gas desulfurization (FGD) wastewater, bottom ash (BA) transport water and legacy wastewater at existing sources, and combustion residual leachate (CRL) at new and existing sources. Last updated in 2015 and 2020, this regulation is estimated to cost an additional $536 million to $1.1 billion dollars annually in social costs and reduce pollutant discharges by an additional approximately 660 to 672 million pounds per year.
DATES: This final rule is effective on July 8, 2024 published in the Federal Register May 9, 2024, page 40198.
View final rule.
Part 423 - Steam electric power generating point source category | ||
Authority | Revised | View text |
§423.10 Applicability. | ||
Entire section | Revised | View text |
§423.11 Specialized definitions. | ||
(n), (p), (r), (w), (z), and (bb) | Revised | View text |
(ee) and (ff) | Added | View text |
§423.13 Effluent limitations guidelines representing the degree of effluent reduction attainable by the application of the best available technology economically achievable (BAT). | ||
(g), (h)(1), (i)(1), (k), (l), and (o) | Revised | View text |
§423.15 New source performance standards (NSPS). | ||
(c) | Added | View text |
§423.16 Pretreatment standards for existing sources (PSES). | ||
(e) and (g) | Revised | View text |
§423.17 Pretreatment standards for new sources (PSNS). | ||
(c) | Added | View text |
§423.18 Permit conditions. | ||
Entire section | Revised | View text |
§423.19 Reporting and recordkeeping requirements. | ||
Entire section | Revised | View text |
New Text
Part 423 - Steam electric power generating point source category
Authority: 33 U.S.C. 1251 et seq.; 1311; 1314(b), (c), (e), (g), and (i)(A) and (B); 1316; 1317; 1318 and 1361.
§423.10 Applicability and severability.
(a) Applicability. The provisions of this part apply to discharges resulting from the operation of a generating unit by an establishment whose generation of electricity is the predominant source of revenue or principal reason for operation, and whose generation of electricity results primarily from a process utilizing fossil-type fuel (coal, oil, or gas), fuel derived from fossil fuel (e.g., petroleum coke, synthesis gas), or nuclear fuel in conjunction with a thermal cycle employing the steam water system as the thermodynamic medium. This part applies to discharges associated with both the combustion turbine and steam turbine portions of a combined cycle generating unit.
(b) Severability. The provisions of this part are separate and severable from one another. If any provision is stayed or determined to be invalid, the remaining provisions shall continue in effect.
§423.11 Specialized definitions.
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(n) The term flue gas desulfurization (FGD) wastewater means any wastewater generated specifically from the wet flue gas desulfurization scrubber system that comes into contact with the flue gas or the FGD solids, including but not limited to, the blowdown from the FGD scrubber system, overflow or underflow from the solids separation process, FGD solids wash water, and the filtrate from the solids dewatering process. Wastewater generated from cleaning the FGD scrubber, cleaning FGD solids separation equipment, cleaning FGD solids dewatering equipment; FGD paste equipment cleaning water; treated FGD wastewater permeate or distillate used as boiler makeup water; water that is collected in floor drains in the FGD process area; wastewater removed from FGD wastewater treatment equipment within the first 120 days of decommissioning the equipment, or wastewater generated by a 10-year, 24-hour or longer duration storm event when meeting the certification requirements in §423.19(o) is not considered FGD wastewater.
* * * * *
(p) The term transport water means any wastewater that is used to convey fly ash, bottom ash, or economizer ash from the ash collection or storage equipment, or boiler, and has direct contact with the ash. Transport water does not include low volume, short duration discharges of wastewater from minor leaks (e.g., leaks from valve packing, pipe flanges, or piping), minor maintenance events (e.g., replacement of valves or pipe sections), FGD paste equipment cleaning water, bottom ash purge water, wastewater removed from ash handling equipment within the first 120 days of decommissioning the equipment, or wastewater generated by a 10-year, 24-hour or longer duration storm event when meeting the certification requirements in §423.19(o).
* * * * *
(r) The term combustion residual leachate means leachate from landfills or surface impoundments containing combustion residuals. Leachate is composed of liquid, including any suspended or dissolved constituents in the liquid, that has percolated through waste or other materials emplaced in a landfill, or that passes through the surface impoundment's containment structure (e.g., bottom, dikes, berms). Combustion residual leachate includes seepage and/or leakage from a combustion residual landfill or impoundment unit. Combustion residual leachate includes wastewater from landfills and surface impoundments located on non-adjoining property when under the operational control of the permitted facility. Combustion residual leachate does not include wastewater generated by a 10-year, 24-hour or longer duration storm event when meeting the certification requirements in §423.19(o).
* * * * *
(w) The term permanent cessation of coal combustion means the owner or operator certifies under §423.19(g) or (h) that an electric generating unit will cease combustion of coal no later than December 31, 2028, or December 31, 2034.
* * * * *
(z) The term low utilization electric generating unit means any electric generating unit for which the facility owner certifies, and annually recertifies, under §423.19(f) that the two-year average annual capacity utilization rating is less than 10 percent.
* * * * *
(bb) The term tank means a stationary device, designed to contain an accumulation of wastewater which is constructed primarily of non-earthen materials (e.g., wood, concrete, steel, plastic) which provide structural support and which is not a coal combustion residual surface impoundment.
* * * * *
§423.13 Effluent limitations guidelines representing the degree of effluent reduction attainable by the application of the best available technology economically achievable (BAT).
* * * * *
(g) FGD wastewater —(1) 2020 BAT.(i) Except for those discharges to which paragraph (g)(2) or (3) of this section applies, the quantity of pollutants in FGD wastewater shall not exceed the quantity determined by multiplying the flow of FGD wastewater times the concentration listed in table 5 to this paragraph (g)(1)(i). Dischargers must meet the effluent limitations for FGD wastewater in this paragraph (g)(1)(i) by a date determined by the permitting authority that is as soon as possible beginning October 13, 2021, but no later than December 31, 2025. The effluent limitations in this paragraph (g)(1)(i) apply to the discharge of FGD wastewater generated on and after the date determined by the permitting authority for meeting the effluent limitations, as specified in this paragraph (g)(1)(i), until the date determined by the permitting authority for meeting the effluent limitations in paragraph (g)(4) of this section.
Pollutant or pollutant property | BAT effluent limitations | |
---|---|---|
Maximum for any 1 day | Average of daily values for 30 consecutive days shall not exceed | |
Arsenic, total (µg/L) | 18 | 8 |
Mercury, total (ng/L) | 103 | 34 |
Selenium, total (µg/L) | 70 | 29 |
Nitrate/nitrite as N (mg/L) | 4 | 3 |
(ii) For FGD wastewater generated before the date determined by the permitting authority, as specified in paragraph (g)(1)(i) of this section, the EPA is declining to establish BAT limitations and is reserving such limitations to be established by the permitting authority on a case-by-case basis using the permitting authority's best professional judgment.
(2) 2020 BAT subcategories.(i) For any electric generating unit with a total nameplate capacity of less than or equal to 50 megawatts, that is an oil-fired unit, or for which the owner has submitted a certification pursuant to §423.19(g), the quantity of pollutants discharged in FGD wastewater shall not exceed the quantity determined by multiplying the flow of FGD wastewater times the concentration listed for total suspended solids (TSS) in §423.12(b)(11).
(A) For any electric generating unit for which the owner has submitted a certification pursuant to §423.19(g), where such unit has permanently ceased coal combustion by December 31, 2028, there shall be no discharge of pollutants in FGD wastewater after April 30, 2029.
(B) For any electric generating unit for which the owner has submitted a certification pursuant to §423.19(g), where such unit has failed to permanently cease coal combustion by December 31, 2028, there shall be no discharge of pollutants in FGD wastewater after December 31, 2028.
(ii) For FGD wastewater discharges from a high FGD flow facility, the quantity of pollutants in FGD wastewater shall not exceed the quantity determined by multiplying the flow of FGD wastewater times the concentration listed in table 6 to this paragraph (g)(2)(ii). Dischargers must meet the effluent limitations for FGD wastewater in this paragraph (g)(2)(ii) by a date determined by the permitting authority that is as soon as possible beginning October 13, 2021, but no later than December 31, 2023. The effluent limitations in this paragraph (g)(2)(ii) apply to the discharge of FGD wastewater generated on and after the date determined by the permitting authority for meeting the effluent limitations, as specified in this paragraph (g)(2)(ii), until the date determined by the permitting authority for meeting the effluent limitations in paragraph (g)(4) of this section.
Pollutant or pollutant property | BAT effluent limitations | |
---|---|---|
Maximum for any 1 day | Average of daily values for 30 consecutive days shall not exceed | |
Arsenic, total (µg/L) | 11 | 8 |
Mercury, total (ng/L) | 788 | 356 |
(iii) For FGD wastewater discharges from a low utilization electric generating unit, the quantity of pollutants in FGD wastewater shall not exceed the quantity determined by multiplying the flow of FGD wastewater times the concentration listed in table 6 to paragraph (g)(2)(ii) of this section. Dischargers must meet the effluent limitations for FGD wastewater in this paragraph (g)(2)(iii) by a date determined by the permitting authority that is as soon as possible beginning October 13, 2021, but no later than December 31, 2023. These effluent limitations apply to the discharge of FGD wastewater generated on and after the date determined by the permitting authority for meeting the effluent limitations, as specified in this paragraph (g)(2)(iii), until the date determined by the permitting authority for meeting the effluent limitations in paragraph (g)(4) of this section.
(3) Voluntary incentives plan.(i) For dischargers who voluntarily choose to meet the effluent limitations for FGD wastewater in this paragraph (g)(3)(i), the quantity of pollutants in FGD wastewater shall not exceed the quantity determined by multiplying the flow of FGD wastewater times the concentration listed in table 7 to this paragraph (g)(3)(i). Dischargers who choose to meet the effluent limitations for FGD wastewater in this paragraph (g)(3)(i) must meet such limitations by December 31, 2028. The effluent limitations in this paragraph (g)(3)(i) apply to the discharge of FGD wastewater generated on and after December 31, 2028.
Pollutant or pollutant property | BAT effluent limitations | |
---|---|---|
Maximum for any 1 day | Average of daily values for 30 consecutive days shall not exceed | |
Arsenic, total (ug/L) | 5 | NA |
Mercury, total (ng/L) | 23 | 10 |
Selenium, total (ug/L) | 10 | NA |
Nitrate/Nitrite (mg/L) | 2.0 | 1.2 |
Bromide (mg/L) | 0.2 | NA |
TDS (mg/L) | 306 | 149 |
(ii) For discharges of FGD wastewater generated before December 31, 2023, the quantity of pollutants discharged in FGD wastewater shall not exceed the quantity determined by multiplying the flow of FGD wastewater times the concentration listed for TSS in §423.12(b)(11).
(4) 2024 BAT.(i) Except for those discharges to which paragraphs (g)(3) and (g)(4)(ii) through (iv) of this section applies, there shall be no discharge of pollutants in FGD wastewater.
(A) Dischargers must meet the effluent limitations for FGD wastewater in this paragraph (g)(4)(i) by a date determined by the permitting authority that is as soon as possible beginning July 8, 2024, but no later than December 31, 2029. These effluent limitations apply to the discharge of FGD wastewater generated on and after the date determined by the permitting authority for meeting the effluent limitations, as specified in this paragraph (g)(4)(i).
(B) A facility which submits a request under §423.19(n) may discharge permeate or distillate from an FGD wastewater treatment system designed to achieve the limitations in this paragraph (g)(4)(i) for an additional period of up to one year from the date determined in paragraph (g)(4)(i)(A) of this section.
(ii) For any electric generating unit with a total nameplate capacity of less than or equal to 50 megawatts or that is an oil-fired unit, the quantity of pollutants discharged in FGD wastewater shall not exceed the quantity determined by multiplying the flow of FGD wastewater times the concentration listed for TSS in §423.12(b)(11).
(iii) For any electric generating unit for which the owner has submitted a certification pursuant to §423.19(h), the quantity of pollutants discharged in FGD wastewater shall continue to be subject to limitations specified in paragraph (g)(1) or (g)(2)(ii) or (iii) of this section as incorporated into the existing permit.
(A) Where such unit has permanently ceased coal combustion by December 31, 2034, there shall be no discharge of pollutants in FGD wastewater after April 30, 2035.
(B) Where such unit has failed to permanently cease coal combustion by December 31, 2034, there shall be no discharge of pollutants in FGD wastewater after December 31, 2034.
(iv) For FGD wastewater discharged from any coal combustion residual surface impoundment which commences closure pursuant to 40 CFR 257.102(e) after July 8, 2024, the quantity of pollutants in FGD wastewater shall not exceed the quantity determined by multiplying the flow of FGD wastewater times the concentration listed in table 8 to this paragraph (g)(4)(iv).
Pollutant or pollutant property | BAT effluent limitations | |
---|---|---|
Maximum for any 1 day | Average of daily values for 30 consecutive days shall not exceed | |
Arsenic, total (µg/L) | 11 | 8 |
Mercury, total (ng/L) | 788 | 356 |
(h) Fly ash transport water.(1)(i) Except for those discharges to which paragraph (h)(2) of this section applies, or when the fly ash transport water is used in the FGD scrubber, there shall be no discharge of pollutants in fly ash transport water. Dischargers must meet the discharge limitation in this paragraph by a date determined by the permitting authority that is as soon as possible beginning November 1, 2018, but no later than December 31, 2023. This limitation applies to the discharge of fly ash transport water generated on and after the date determined by the permitting authority for meeting the discharge limitation, as specified in this paragraph. Whenever fly ash transport water is used in any other plant process or is sent to a treatment system at the plant (except when it is used in the FGD scrubber), the resulting effluent must comply with the discharge limitation in this paragraph. When the fly ash transport water is used in the FGD scrubber, the quantity of pollutants in fly ash transport water shall not exceed the quantity determined by multiplying the flow of fly ash transport water times the concentration listed in the table in paragraph (g)(1)(i) of this section.
(ii) Legacy fly ash transport water. For fly ash transport water generated before the date determined by the permitting authority, as specified in paragraph (h)(1)(i) of this section, the EPA is declining to establish BAT limitations and is reserving such limitations to be established by the permitting authority on a case-by-case basis using the permitting authority's best professional judgment.
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(i) Flue gas mercury control wastewater.(1)(i) Except for those discharges to which paragraph (i)(2) of this section applies, there shall be no discharge of pollutants in flue gas mercury control wastewater. Dischargers must meet the discharge limitation in this paragraph by a date determined by the permitting authority that is as soon as possible beginning November 1, 2018, but no later than December 31, 2023. This limitation applies to the discharge of flue gas mercury control wastewater generated on and after the date determined by the permitting authority for meeting the discharge limitation, as specified in this paragraph. Whenever flue gas mercury control wastewater is used in any other plant process or is sent to a treatment system at the plant, the resulting effluent must comply with the discharge limitation in this paragraph.
(ii) Legacy flue gas mercury control wastewater. For flue gas mercury control wastewater generated before the date determined by the permitting authority, as specified in paragraph (i)(1)(i) of this section, the EPA is declining to establish BAT limitations and is reserving such limitations to be established by the permitting authority on a case-by-case basis using the permitting authority's best professional judgment.
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(k) Bottom ash transport water —(1) 2020 BAT.(i) Except for those discharges to which paragraph (k)(2) of this section applies, or when the bottom ash transport water is used in the FGD scrubber, there shall be no discharge of pollutants in bottom ash transport water. Dischargers must meet the discharge limitation in this paragraph (k)(1)(i) by a date determined by the permitting authority that is as soon as possible beginning October 13, 2021, but no later than December 31, 2025. The limitation in this paragraph (k)(1)(i) applies to the discharge of bottom ash transport water generated on and after the date determined by the permitting authority for meeting the discharge limitation, as specified in this paragraph (k)(1)(i), until the date determined by the permitting authority for meeting the effluent limitations in paragraph (k)(4) of this section. Except for those discharges to which paragraph (k)(2) of this section applies, whenever bottom ash transport water is used in any other plant process or is sent to a treatment system at the plant (except when it is used in the FGD scrubber), the resulting effluent must comply with the discharge limitation in this paragraph (k)(1)(i). When the bottom ash transport water is used in the FGD scrubber, it ceases to be bottom ash transport water, and instead is FGD wastewater, which must meet the requirements in paragraph (g) of this section.
(ii) For bottom ash transport water generated before the date determined by the permitting authority, as specified in paragraph (k)(1)(i) of this section, the EPA is declining to establish BAT limitations and is reserving such limitations to be established by the permitting authority on a case-by-case basis using the permitting authority's best professional judgment.
(2) 2020 BAT subcategories.(i)(A) The discharge of pollutants in bottom ash transport water from a properly installed, operated, and maintained bottom ash system is authorized under the following conditions:
(1) To maintain system water balance when precipitation-related inflows are generated from storm events exceeding a 10-year storm event of 24-hour or longer duration (e.g., 30-day storm event) and cannot be managed by installed spares, redundancies, maintenance tanks, and other secondary bottom ash system equipment; or
(2) To maintain system water balance when regular inflows from wastestreams other than bottom ash transport water exceed the ability of the bottom ash system to accept recycled water and segregating these other wastestreams is not feasible; or
(3) To maintain system water chemistry where installed equipment at the facility is unable to manage pH, corrosive substances, substances or conditions causing scaling, or fine particulates to below levels which impact system operation or maintenance; or
(4) To conduct maintenance not otherwise included in paragraph (k)(2)(i)(A)(1), (2), or (3) of this section and not exempted from the definition of transport water in §423.11(p), and when water volumes cannot be managed by installed spares, redundancies, maintenance tanks, and other secondary bottom ash system equipment.
(B) The total volume that may be discharged for the activities in paragraph (k)(2)(i)(A) of this section shall be reduced or eliminated to the extent achievable using control measures (including best management practices) that are technologically available and economically achievable in light of best industry practice. The total volume of the discharge authorized in this paragraph (k)(2)(i)(B) shall be determined on a case-by-case basis by the permitting authority and in no event shall such discharge exceed a 30-day rolling average of ten percent of the primary active wetted bottom ash system volume. The volume of daily discharges used to calculate the 30-day rolling average shall be calculated using measurements from flow monitors.
(ii) For any electric generating unit with a total nameplate generating capacity of less than or equal to 50 megawatts, that is an oil-fired unit, or for which the owner has certified to the permitting authority that it will cease combustion of coal pursuant to §423.19(g), the quantity of pollutants discharged in bottom ash transport water shall not exceed the quantity determined by multiplying the flow of the applicable wastewater times the concentration for TSS listed in §423.12(b)(4).
(A) Where a unit has certified that it will cease combustion of coal pursuant to §423.19(g) and such unit has permanently ceased coal combustion by December 31, 2028, there shall be no discharge of pollutants in bottom ash transport water after April 30, 2029.
(B) Where a unit has certified that it will cease combustion of coal pursuant to §423.19(g) and such unit has failed to permanently cease coal combustion by December 31, 2028, there shall be no discharge of pollutants in bottom ash transport water after December 31, 2028.
(iii) For bottom ash transport water generated by a low utilization electric generating unit, the quantity of pollutants discharged in bottom ash transport water shall not exceed the quantity determined by multiplying the flow of the applicable wastewater times the concentration for TSS listed in §423.12(b)(4), until the date determined by the permitting authority for meeting the effluent limitations in paragraph (k)(4) of this section, and shall incorporate the elements of a best management practices plan as described in paragraph (k)(3) of this section.
(3) Best management practices plan. Where required in paragraph (k)(2)(iii) of this section, the discharger shall prepare, implement, review, and update a best management practices plan for the recycle of bottom ash transport water, and must include:
(i) Identification of the low utilization coal-fired generating units that contribute bottom ash to the bottom ash transport system.
(ii) A description of the existing bottom ash handling system and a list of system components (e.g., remote mechanical drag system, tanks, impoundments, chemical addition). Where multiple generating units share a bottom ash transport system, the plan shall specify which components are associated with low utilization generating units.
(iii) A detailed water balance, based on measurements, or estimates where measurements are not feasible, specifying the volume and frequency of water additions and removals from the bottom ash transport system, including:
(A) Water removed from the BA transport system:
(1) To the discharge outfall;
(2) To the FGD scrubber system;
(3) Through evaporation;
(4) Entrained with any removed ash; and
(5) To any other mechanisms not specified paragraphs (k)(3)(iii)(A)(1) through (4) of this section.
(B) Water entering or recycled to the BA transport system:
(1) Makeup water added to the BA transport water system.
(2) Bottom ash transport water recycled back to the system in lieu of makeup water.
(3) Any other mechanisms not specified in paragraphs (k)(3)(iii)(B)(1) and (2) of this section.
(iv) Measures to be employed by all facilities:
(A) Implementation of a comprehensive preventive maintenance program to identify, repair and replace equipment prior to failures that result in the release of bottom ash transport water.
(B) Daily or more frequent inspections of the entire bottom ash transport water system, including valves, pipe flanges and piping, to identify leaks, spills and other unintended bottom ash transport water escaping from the system, and timely repair of such conditions.
(C) Documentation of preventive and corrective maintenance performed.
(v) Evaluation of options and feasibility, accounting for the associated costs, for eliminating or minimizing discharges of bottom ash transport water, including:
(A) Segregation of bottom ash transport water from other process water.
(B) Minimization of the introduction of stormwater by diverting (e.g., curbing, using covers) storm water to a segregated collection system.
(C) Recycling bottom ash transport water back to the bottom ash transport water system.
(D) Recycling bottom ash transport water for use in the FGD scrubber.
(E) Optimization of existing equipment (e.g., pumps, pipes, tanks) and installing new equipment where practicable to achieve the maximum amount of recycle.
(F) Utilization of “in-line” treatment of transport water (e.g., pH control, fines removal) where needed to facilitate recycle.
(vi) Description of the bottom ash recycle system, including all technologies, measures, and practices that will be used to minimize discharge.
(vii) A schedule showing the sequence of implementing any changes necessary to achieve the minimized discharge of bottom ash transport water, including the following:
(A) The anticipated initiation and completion dates of construction and installation associated with the technology components or process modifications specified in the plan.
(B) The anticipated dates that the discharger expects the technologies and process modifications to be fully implemented on a full-scale basis, which in no case shall be later than December 31, 2023.
(C) The anticipated change in discharge volume and effluent quality associated with implementation of the plan.
(viii) Description establishing a method for documenting and demonstrating to the permitting/control authority that the recycle system is well operated and maintained.
(ix) Performance of weekly flow monitoring for the following:
(A) Make up water to the bottom ash transport water system.
(B) Bottom ash transport water sluice flow rate (e.g., to the surface impoundment(s), dewatering bins(s), tank(s), remote mechanical drag system).
(C) Bottom ash transport water discharge to surface water or publicly owned treatment works (POTW).
(D) Bottom ash transport water recycle back to the bottom ash system or FGD scrubber.
(4) 2024 BAT.(i) Except for those discharges to which paragraphs (k)(4)(ii) through (iv) of this section applies, or when the bottom ash transport water is used in the FGD scrubber, there shall be no discharge of pollutants in bottom ash transport water. Dischargers must meet the discharge limitation in this paragraph (k)(4)(i) by a date determined by the permitting authority that is as soon as possible beginning July 8, 2024, but no later than December 31, 2029. The limitation in this paragraph (k)(4)(i) applies to the discharge of bottom ash transport water generated on and after the date determined by the permitting authority for meeting the discharge limitation, as specified in this paragraph (k)(4)(i).
(ii) For any electric generating unit with a total nameplate generating capacity of less than or equal to 50 megawatts or that is an oil-fired unit, the quantity of pollutants discharged in bottom ash transport water shall not exceed the quantity determined by multiplying the flow of the applicable wastewater times the concentration for TSS listed in §423.12(b)(4).
(iii) For any electric generating unit for which the owner has submitted a certification pursuant to §423.19(h), the quantity of pollutants discharged in bottom ash transport water shall continue to be subject to limitations specified in paragraph (k)(1) or (k)(2)(i) or (iii) of this section as incorporated into the existing permit.
(A) Where such unit has permanently ceased coal combustion by December 31, 2034, there shall be no discharge of pollutants in bottom ash transport water after April 30, 2035.
(B) Where such unit has failed to permanently cease coal combustion by December 31, 2034, there shall be no discharge of pollutants in bottom ash transport water after December 31, 2034.
(iv) For bottom ash transport water discharged from any coal combustion residual surface impoundment which commences closure pursuant to 40 CFR 257.102(e) after July 8, 2024, the quantity of pollutants in bottom ash transport water shall not exceed the quantity determined by multiplying the flow of bottom ash transport water times the concentration listed in table 10 to this paragraph (k)(4)(iv).
Pollutant or pollutant property | BAT effluent limitations | |
---|---|---|
Maximum for any 1 day | Average of daily values for 30 consecutive days shall not exceed | |
Arsenic, total (µg/L) | 11 | 8 |
Mercury, total (ng/L) | 788 | 356 |
(l) Combustion residual leachate —(1) 2024 BAT.(i) Except for those discharges to which paragraph (l)(1)(i)(B) or (C) or (1)(2) of this section applies, there shall be no discharge of pollutants in combustion residual leachate.
(A) Dischargers must meet the effluent limitations for combustion residual leachate in this paragraph (l)(1)(i) by a date determined by the permitting authority that is as soon as possible beginning July 8, 2024, but no later than December 31, 2029. The effluent limitations in this paragraph (l)(1)(i) apply to the discharge of combustion residual leachate generated on and after the date determined by the permitting authority for meeting the effluent limitations, as specified in this paragraph (l)(1)(i).
(B) A facility which submits a request under §423.19(n) may discharge permeate or distillate from a combustion residual leachate treatment system designed to achieve the limitations in this paragraph (l)(1)(i) for an additional period of up to one year from the date determined in paragraph (l)(1)(i)(A) of this section.
(C) After the retirement of all units at a facility, the quantity of pollutants in combustion residual leachate (CRL) shall not exceed the quantity determined by multiplying the flow of CRL permeate times the concentrations listed in the table 7 to paragraph (g)(3)(i) of this section or the flow of CRL distillate times the concentrations listed in the table following §423.15(b)(13).
(ii) For combustion residual leachate generated before the date determined by the permitting authority, as specified in paragraph (l)(1)(i) of this section, the EPA is declining to establish BAT limitations and is reserving such limitations to be established by the permitting authority on a case-by-case basis using the permitting authority's best professional judgment.
(2) 2024 BAT subcategories.(i) Discharges of combustion residual leachate for which the owner has submitted a certification pursuant to §423.19(h).
(A) Where such unit has permanently ceased coal combustion by December 31, 2034, the quantity of pollutants in combustion residual leachate shall not exceed the quantity determined by multiplying the flow of combustion residual leachate times the concentration listed in table 11 to this paragraph (l)(2)(i)(A) by a date determined by the permitting authority that is as soon as possible beginning 120 days after the facility permanently ceases coal combustion, but no later than April 30, 2035.
Pollutant or pollutant property | BAT effluent limitations | |
---|---|---|
Maximum for any 1 day | Average of daily values for 30 consecutive days shall not exceed | |
Arsenic, total (µg/L) | 11 | 8 |
Mercury, total (ng/L) | 788 | 356 |
(B) Where such unit has failed to permanently cease coal combustion by December 31, 2034, there shall be no discharge of pollutants in combustion residual leachate after December 31, 2034.
(ii) For discharges of unmanaged combustion residual leachate, the quantity of pollutants in unmanaged combustion residual leachate shall not exceed the quantity determined by multiplying the flow of unmanaged combustion residual leachate times the concentration listed in the table 11 to paragraph (l)(2)(i)(A) of this section.
(A) Dischargers must meet the effluent limitations for unmanaged combustion residual leachate in this paragraph (l)(2)(ii) by a date determined by the permitting authority that is as soon as possible beginning July 8, 2024, but no later than December 31, 2029. The effluent limitations in this paragraph (l)(2)(ii) apply to the discharge of unmanaged combustion residual leachate generated on and after the date determined by the permitting authority for meeting the effluent limitations, as specified in this paragraph (l)(2)(ii).
(B) Discharges of unmanaged combustion residual leachate before the date determined in paragraph (l)(2)(ii)(A) of this section.
(iii) For combustion residual leachate discharged from any coal combustion residual surface impoundment which commences closure pursuant to 40 CFR 257.102(e) after July 8, 2024, the quantity of pollutants in combustion residual leachate shall not exceed the quantity determined by multiplying the flow of combustion residual leachate times the concentration listed in table 12 to this paragraph (l)(2)(iii).
Pollutant or pollutant property | BAT effluent limitations | |
---|---|---|
Maximum for any 1 day | Average of daily values for 30 consecutive days shall not exceed | |
Arsenic, total (µg/L) | 11 | 8 |
Mercury, total (ng/L) | 788 | 356 |
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(o) Transfers.(1) Transfer between applicable limitations in a permit. Where, in the permit, the permitting authority has included alternative limits subject to eligibility requirements, upon timely notification to the permitting authority under §423.19(l), a facility can become subject to the alternative limits under the following circumstances:
(i) On or before December 31, 2023, a facility may convert:
(A) From limitations for electric generating units permanently ceasing coal combustion under paragraph (g)(2)(i) or (k)(2)(ii) of this section to limitations for low utilization electric generating units under paragraph (g)(2)(iii) or (k)(2)(iii) of this section; or
(B) From voluntary incentives program limitations under paragraph (g)(3)(i) of this section or generally applicable limitations under paragraph (k)(1)(i) of this section to limitations for low utilization electric generating units under paragraph (g)(2)(iii) or (k)(2)(iii) of this section.
(ii) On or before December 31, 2025, a facility may convert:
(A) From voluntary incentives program limitations under paragraph (g)(3)(i) of this section to limitations for electric generating units permanently ceasing coal combustion under paragraph (g)(2)(i) of this section; or
(B) From limitations for electric generating units permanently ceasing coal combustion under paragraph (g)(2)(i) or (k)(2)(ii) of this section to voluntary incentives program limitations under paragraph (g)(3)(i) of this section or generally applicable limitations under (k)(1)(i) of this section; or
(C) From limitations for low utilization electric generating units under paragraph (g)(2)(iii) or (k)(2)(iii) of this section to generally applicable limitations under paragraph (g)(1)(i) or (k)(1)(i) of this section; or
(D) From limitations for low utilization electric generating units under paragraph (g)(2)(iii) or (k)(2)(iii) of this section to voluntary incentives program limitations under paragraph (g)(3)(i) of this section or generally applicable limitations under paragraph (k)(1)(i) of this section; or
(E) From limitations for low utilization electric generating units under paragraph (g)(2)(iii) or (k)(2)(iii) of this section to limitations for electric generating units permanently ceasing coal combustion under paragraph (g)(2)(i) and (k)(2)(ii) of this section.
(2) A facility must be in compliance with all of its currently applicable requirements to be eligible to file a notice under §423.19(l) and to become subject to a different set of applicable requirements under paragraph (o)(1) of this section.
(3) Where a facility seeking a transfer under paragraph (o)(1)(ii) of this section is currently subject to more stringent limitations than the limitations being sought, the facility must continue to meet those more stringent limitations.
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§423.16 Pretreatment standards for existing sources (PSES).
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(e) FGD wastewater —(1) 2020 PSES. Except as provided for in paragraph (e)(2) of this section, for any electric generating unit with a total nameplate generating capacity of more than 50 megawatts, that is not an oil-fired unit, and that the owner has not certified that it will cease coal combustion pursuant to §423.19(g), the quantity of pollutants in FGD wastewater shall not exceed the quantity determined by multiplying the flow of FGD wastewater times the concentration listed in table 3 to this paragraph (e)(1). Dischargers must meet the standards in this paragraph (e)(1) by October 13, 2023, except as provided for in paragraph (e)(2) of this section. The standards in this paragraph (e)(1) apply to the discharge of FGD wastewater generated on and after October 13, 2023.
Pollutant or pollutant property | PSES | |
---|---|---|
Maximum for any 1 day | Average of daily values for 30 consecutive days shall not exceed | |
Arsenic, total (µg/L) | 18 | 8 |
Mercury, total (ng/L) | 103 | 34 |
Selenium, total (µg/L) | 70 | 29 |
Nitrate/nitrite as N (mg/L) | 4 | 3 |
(2) 2020 PSES subcategories.(i) For FGD wastewater discharges from a low utilization electric generating unit, the quantity of pollutants in FGD wastewater shall not exceed the quantity determined by multiplying the flow of FGD wastewater times the concentration listed in the table 4 to paragraph (e)(2)(ii) of this section. Dischargers must meet the standards in this paragraph (e)(2)(i) by October 13, 2023.
(ii) If any low utilization electric generating unit fails to timely recertify that the two year average capacity utilization rating of such an electric generating unit is below 10 percent per year as specified in §423.19(f), regardless of the reason, within two years from the date such a recertification was required, the quantity of pollutants in FGD wastewater shall not exceed the quantity determined by multiplying the flow of FGD wastewater times the concentration listed in the table 3 to paragraph (e)(1) of this section.
Pollutant or pollutant property | PSES | |
---|---|---|
Maximum for any 1 day | Average of daily values for 30 consecutive days shall not exceed | |
Arsenic, total (µg/L) | 11 | 8 |
Mercury, total (ng/L) | 788 | 356 |
(3) 2024 PSES. Except as provided for in paragraph (e)(4) of this section, for any electric generating unit with a total nameplate generating capacity of more than 50 megawatts and that is not an oil-fired unit, there shall be no discharge of pollutants in FGD wastewater. Dischargers must meet the standards in this paragraph (e)(3) by May 9, 2027, except as provided for in paragraph (e)(4) of this section. The standards in this paragraph (e)(3) apply to the discharge of FGD wastewater generated on and after May 9, 2027.
(4) 2024 PSES subcategories.(i) For any electric generating unit for which the owner has submitted a certification pursuant to §423.19(h), the quantity of pollutants discharged in FGD wastewater shall continue to be subject to standards specified in paragraph (e)(1) or (2) of this section as incorporated into the existing control mechanism.
(A) Where such unit has permanently ceased coal combustion by December 31, 2034, there shall be no discharge of pollutants in FGD wastewater after April 30, 2035.
(B) Where such unit has failed to permanently cease coal combustion by December 31, 2034, there shall be no discharge of pollutants in FGD wastewater after December 31, 2034.
(ii) For FGD wastewater discharged from any coal combustion residual surface impoundment which commences closure pursuant to 40 CFR 257.102(e) after July 8, 2024, the quantity of pollutants in FGD wastewater shall not exceed the quantity determined by multiplying the flow of FGD wastewater times the concentration listed in the table 5 to this paragraph (e)(4)(ii).
Pollutant or pollutant property | PSES | |
---|---|---|
Maximum for any 1 day | Average of daily values for 30 consecutive days shall not exceed | |
Arsenic, total (µg/L) | 11 | 8 |
Mercury, total (ng/L) | 788 | 356 |
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(g) Bottom ash transport water —(1) 2020 PSES. Except for those discharges to which paragraph (g)(2) of this section applies, or when the bottom ash transport water is used in the FGD scrubber, for any electric generating unit with a total nameplate generating capacity of more than 50 megawatts, that is not an oil-fired unit, that is not a low utilization electric generating unit, and that the owner has not certified that the electric generating unit will cease coal combustion pursuant to §423.19(g), there shall be no discharge of pollutants in bottom ash transport water. The standard in this paragraph (g)(1) applies to the discharge of bottom ash transport water generated on and after October 13, 2023. Except for those discharges to which paragraph (g)(2) of this section applies, whenever bottom ash transport water is used in any other plant process or is sent to a treatment system at the plant (except when it is used in the FGD scrubber), the resulting effluent must comply with the discharge standard in this paragraph (g)(1). When the bottom ash transport water is used in the FGD scrubber, the quantity of pollutants in bottom ash transport water shall not exceed the quantity determined by multiplying the flow of bottom ash transport water times the concentration listed in table 3 to paragraph (e)(1) of this section.
(2) 2020 PSES subcategories.(i) The discharge of pollutants in bottom ash transport water from a properly installed, operated, and maintained bottom ash system is authorized under the following conditions:
(A) To maintain system water balance when precipitation-related inflows are generated from a 10-year storm event of 24-hour or longer duration (e.g., 30-day storm event) and cannot be managed by installed spares, redundancies, maintenance tanks, and other secondary bottom ash system equipment; or
(B) To maintain system water balance when regular inflows from wastestreams other than bottom ash transport water exceed the ability of the bottom ash system to accept recycled water and segregating these other wastestreams is feasible; or
(C) To maintain system water chemistry where current operations at the facility are unable to currently manage pH, corrosive substances, substances or conditions causing scaling, or fine particulates to below levels which impact system operation or maintenance; or
(D) To conduct maintenance not otherwise included in paragraphs (g)(2)(i)(A), (B), or (C) of this section and not exempted from the definition of transport water in §423.11(p), and when water volumes cannot be managed by installed spares, redundancies, maintenance tanks, and other secondary bottom ash system equipment.
(ii) The total volume that may be discharged to a POTW for the activities in paragraphs (g)(2)(i)(A) through (D) of this section shall be reduced or eliminated to the extent achievable as determined by the control authority. The control authority may also include control measures (including best management practices) that are technologically available and economically achievable in light of best industry practice. In no event shall the total volume of the discharge exceed a 30-day rolling average of ten percent of the primary active wetted bottom ash system volume. The volume of daily discharges used to calculate the 30-day rolling average shall be calculated using measurements from flow monitors.
(iii) For bottom ash transport water generated by a low utilization electric generating unit, the quantity of pollutants discharged in bottom ash transport water shall incorporate the elements of a best management practices plan as described in §423.13(k)(3).
(3) 2024 PSES. Except for those discharges to which paragraph (g)(4) of this section applies, for any electric generating unit with a total nameplate generating capacity of more than 50 megawatts, that is not an oil-fired unit, there shall be no discharge of pollutants in bottom ash transport water. The standard in this paragraph (g)(3) applies to the discharge of bottom ash transport water generated on and after May 9, 2027. Except for those discharges to which paragraph (g)(4) of this section applies, whenever bottom ash transport water is used in any other plant process or is sent to a treatment system at the plant, the resulting effluent must comply with the discharge standard in this paragraph (g)(3).
(4) 2024 PSES subcategories.(i) For any electric generating unit for which the owner has submitted a certification pursuant to §423.19(h), the quantity of pollutants discharged in bottom ash transport water shall continue to be subject to standards specified in paragraph (g)(1) or (2) as incorporated into the existing control mechanism.
(A) Where such unit has permanently ceased coal combustion by December 31, 2034, there shall be no discharge of pollutants in bottom ash transport water after April 30, 2035.
(B) Where such unit has failed to permanently cease coal combustion by December 31, 2034, there shall be no discharge of pollutants in bottom ash transport water after December 31, 2034.
(ii) For bottom ash transport water discharged from any coal combustion residual surface impoundment which commences closure pursuant to 40 CFR 257.102(e) after July 8, 2024, the quantity of pollutants in bottom ash transport water shall not exceed the quantity determined by multiplying the flow of bottom ash transport water times the concentration listed in table 6 to this paragraph (g)(4)(ii).
Pollutant or pollutant property | PSES | |
---|---|---|
Maximum for any 1 day | Average of daily values for 30 consecutive days shall not exceed | |
Arsenic, total (µg/L) | 11 | 8 |
Mercury, total (ng/L) | 788 | 356 |
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§423.18 Permit conditions.
All permits subject to this part shall include the following permit conditions:
(a) An electric generating unit shall qualify as a low utilization electric generating unit, permanently ceasing the combustion of coal by December 31, 2028, or permanently ceasing the combustion of coal by December 31, 2034, if such qualification would have been demonstrated absent the following qualifying event:
(1) An emergency order issued by the Department of Energy under section 202(c) of the Federal Power Act;
(2) A reliability must run agreement issued by a Public Utility Commission; or
(3) Any other reliability-related order, energy emergency alert, or agreement issued by a competent electricity regulator (e.g., an independent system operator) which results in that electric generating unit operating in a way not contemplated when the certification was made; or
(4) The operation of the electric generating unit was necessary for load balancing in an area subject to a declaration under 42 U.S.C. 5121 et seq., that there exists:
(i) An “Emergency”; or
(ii) A “Major Disaster”; and
(iii) That load balancing was due to the event that caused the “Emergency” or “Major Disaster” in paragraphs (a)(4)(i) and (ii) of this section to be declared.
(b) Any facility providing the required documentation pursuant to §423.19(i) may avail itself of the protections of the permit condition in paragraph (a) of this section.
(c) A facility discharging permeate or distillate from an FGD wastewater or combustion residual leachate treatment system and satisfying §423.19(n) shall be deemed to meet the following requirements:
(1) The FGD wastewater requirements of §423.13(g)(4) for up to one year after the date determined pursuant to §423.11(t); and
(2) The combustion residual leachate requirements of §423.13(l)(1) for up to one year after the date determined pursuant to §423.11(t).
§423.19 Reporting and recordkeeping requirements.
(a) In general. Discharges subject to this part must comply with the reporting requirements in this section.
(b) Signature and certification. Unless otherwise provided in this section, all certifications and recertifications required in this part must be signed and certified pursuant to 40 CFR 122.22 for direct dischargers or 40 CFR 403.12(l) for indirect dischargers.
(c) Publicly accessible internet site requirements.(1) Except as provided in paragraph (c)(2) of this section, each facility subject to one or more of the reporting requirements in paragraphs (d) through (o) of this section must maintain a publicly accessible internet site (ELG website) containing the information specified in paragraphs (d) through (o), if applicable. This website shall be titled “ELG Rule Compliance Data and Information.” The facility must ensure that all information required to be posted is immediately available to anyone visiting the site, without requiring any prerequisite, such as registration or a requirement to submit a document request. All required information must be clearly identifiable and must be able to be immediately downloaded by anyone accessing the site in a format that enables additional analysis (e.g., comma-separated values text file format). When the facility initially creates, or later changes, the web address (i.e., Uniform Resource Locator (URL)) at any point, they must notify EPA via the “contact us” form on EPA's Effluent Guidelines website and the permitting authority or control authority within 14 days of creating the website or making the change. The facility's ELG website must also have a “contact us” form or a specific email address posted on the website for the public to use to submit questions and issues relating to the availability of information on the website.
(2)(i) When an owner or operator subject to this section already maintains a “CCR Rule Compliance Data and Information” website pursuant to 40 CFR 257.107, the postings required under this section may be made to the existing “CCR Rule Compliance Data and Information” website and shall be delineated under a separate heading that shall state “ELG Rule Compliance Data and Information.” When electing to use an existing website pursuant to this paragraph (c)(2), the facility shall notify EPA via the “contact us” form on EPA's Effluent Guidelines website and the permitting authority or control authority no later than July 8, 2024, or upon first becoming subject to paragraphs (d) through (o) of this section, whichever is later.
(ii) When the same owner or operator is subject to the provisions of this part for multiple facilities, the owner or operator may comply with the requirements of this section by using the same internet site for multiple facilities provided the ELG website clearly delineates information by the name of each facility.
(3) Unless otherwise required in this section, the information required to be posted to the ELG website must be made available to the public for at least 10 years following the date on which the information was first posted to the ELG website, or the length of the permit plus five years, whichever is longer. All required information must be clearly identifiable and must be able to be immediately downloaded by anyone accessing the site in a format that enables additional analysis (e.g., comma-separated values text file format).
(4) Unless otherwise required in this section, the information must be posted to the ELG website:
(i) Within 30 days of submitting the information to the permitting authority or control authority; or
(ii) Where information was submitted to the permitting authority or control authority prior to July 8, 2024, by July 8, 2024.
(d) Requirements for facilities discharging bottom ash transport water under this part —(1) Certification statement. For sources seeking to discharge bottom ash transport water pursuant to §423.13(k)(2)(i) or (g)(2)(i), an initial certification shall be submitted to the permitting authority by the as soon as possible date determined under §423.11(t), or the control authority by October 13, 2023, in the case of an indirect discharger.
(2) Signature and certification. The certification statement must be signed and certified by a professional engineer.
(3) Contents. An initial certification shall include the following:
(i) A statement that the professional engineer is a licensed professional engineer.
(ii) A statement that the professional engineer is familiar with the requirements in this part.
(iii) A statement that the professional engineer is familiar with the facility.
(iv) The primary active wetted bottom ash system volume in §423.11(aa).
(v) Material assumptions, information, and calculations used by the certifying professional engineer to determine the primary active wetted bottom ash system volume.
(vi) A list of all potential discharges under §423.13(k)(2)(i)(A)(1) through (4) or §423.16(g)(2)(i)(A) through (D), the expected volume of each discharge, and the expected frequency of each discharge.
(vii) Material assumptions, information, and calculations used by the certifying professional engineer to determine the expected volume and frequency of each discharge including a narrative discussion of why such water cannot be managed within the system and must be discharged.
(viii) A list of all wastewater treatment systems at the facility currently, or otherwise required by a date certain under this section.
(ix) A narrative discussion of each treatment system including the system type, design capacity, and current or expected operation.
(e) Requirements for a bottom ash best management practices plan —(1) Initial and annual certification statement. For sources required to develop and implement a best management practices plan pursuant to §423.13(k)(3), an initial certification shall be made to the permitting authority with a permit application or within two years of October 13, 2021, whichever is later, or to the control authority no later than October 13, 2023, in the case of an indirect discharger, and an annual recertification shall be made to the permitting authority, or control authority in the case of an indirect discharger, within 60 days of the anniversary of the original plan.
(2) Signature and certification. The certification statement must be signed and certified by a professional engineer.
(3) Contents for initial certification. An initial certification shall include the following:
(i) A statement that the professional engineer is a licensed professional engineer.
(ii) A statement that the professional engineer is familiar with the requirements in this part.
(iii) A statement that the professional engineer is familiar with the facility.
(iv) The best management practices plan.
(v) A statement that the best management practices plan is being implemented.
(4) Additional contents for annual certification. In addition to the required contents of the initial certification in paragraph (e)(3) of this section an annual certification shall include the following:
(i) Any updates to the best management practices plan.
(ii) An attachment of weekly flow measurements from the previous year.
(iii) The average amount of recycled bottom ash transport water in gallons per day.
(iv) Copies of inspection reports and a summary of preventative maintenance performed on the system.
(v) A statement that the plan and corresponding flow records are being maintained at the office of the plant.
(f) Requirements for low utilization electric generating units —(1) Notice of Planned Participation. For sources seeking to qualify as a low utilization electric generating units, a Notice of Planned Participation shall be submitted to the permitting authority or control authority no later than October 13, 2021.
(2) Contents. A Notice of Planned Participation shall identify the potential low utilization electric generating unit. The notice shall also include a statement of at least two years' capacity utilization rating data for the most recent two years of operation of each low utilization electric generating unit and a statement that the facility has a good faith belief that each low utilization electric generating unit will continue to operate at the required capacity utilization rating. Where the most recent capacity utilization rating does not meet the low utilization electric generating unit requirement, a discussion of the projected future utilization shall be provided, including material data and assumptions used to make that projection.
(3) Initial and annual certification statement. For sources seeking to qualify as a low utilization electric generating unit under this part, an initial certification shall be made to the permitting authority, or to the control authority in the case of an indirect discharger, no later than December 31, 2023, and an annual recertification shall be made to the permitting authority, or control authority in the case of an indirect discharger, within 60 days of submitting annual electricity production data to the Energy Information Administration.
(4) Contents. A certification or annual recertification shall be based on the information submitted to the Energy Information Administration and shall include copies of the underlying forms submitted to the Energy Information Administration, as well as any supplemental information and calculations used to determine the two year average annual capacity utilization rating.
(g) Requirements for units that will achieve permanent cessation of coal combustion by December 31, 2028 —(1) Notice of Planned Participation. For sources seeking to qualify as an electric generating unit that will achieve permanent cessation of coal combustion by December 31, 2028, under this part, a Notice of Planned Participation shall be made to the permitting authority, or to the control authority in the case of an indirect discharger, no later than June 27, 2023.
(2) Contents. A Notice of Planned Participation shall identify the electric generating units intended to achieve the permanent cessation of coal combustion. A Notice of Planned Participation shall include the expected date that each electric generating unit is projected to achieve permanent cessation of coal combustion, whether each date represents a retirement or a fuel conversion, whether each retirement or fuel conversion has been approved by a regulatory body, and what the relevant regulatory body is. The Notice of Planned Participation shall also include a copy of the most recent integrated resource plan for which the applicable state agency approved the retirement or repowering of the unit subject to the ELGs, certification of electric generating unit cessation under 40 CFR 257.103(b), or other documentation supporting that the electric generating unit will permanently cease the combustion of coal by December 31, 2028. The Notice of Planned Participation shall also include, for each such electric generating unit, a timeline to achieve the permanent cessation of coal combustion. Each timeline shall include interim milestones and the projected dates of completion.
(3) Annual progress report. Annually after submission of the Notice of Planned Participation in paragraph (g)(1) of this section, a progress report shall be filed with the permitting authority, or control authority in the case of an indirect discharger.
(4) Contents. An annual progress report shall detail the completion of any interim milestones listed in the Notice of Planned Participation since the previous progress report, provide a narrative discussion of any completed, missed, or delayed milestones, and provide updated milestones. An annual progress report shall also include one of the following:
(i) A copy of the official suspension filing (or equivalent filing) made to the facility's reliability authority detailing the conversion to a fuel source other than coal;
(ii) A copy of the official retirement filing (or equivalent filing) made to the facility's reliability authority which must include a waiver of recission rights; or
(iii) An initial certification, or recertification for subsequent annual progress reports, containing either a statement that the facility will make the filing required in paragraph (g)(4)(i) of this section or a statement that the facility will make the filing required in paragraph (g)(4)(ii) of this section. The certification or recertification must include the estimated date that such a filing will be made.
(iv) A facility shall not include a certification or recertification under paragraph (g)(4)(iii) of this section in the final annual progress report submitted prior to permanent cessation of coal combustion. Rather, this final annual progress report must include the filing under paragraph (g)(4)(i) or (ii) of this section.
(h) Requirements for units that will achieve permanent cessation of coal combustion by December 31, 2034 —(1) Notice of Planned Participation. For sources seeking to qualify as an electric generating unit that will achieve permanent cessation of coal combustion by December 31, 2034, under this part, a Notice of Planned Participation shall be made to the permitting authority, or to the control authority in the case of an indirect discharger, no later than December 31, 2025.
(2) Contents. A Notice of Planned Participation shall identify the electric generating units intended to achieve the permanent cessation of coal combustion. A Notice of Planned Participation shall include the expected date that each electric generating unit is projected to achieve permanent cessation of coal combustion, whether each date represents a retirement or a fuel conversion, whether each retirement or fuel conversion has been approved by a regulatory body, and what the relevant regulatory body is. The Notice of Planned Participation shall also include a copy of the most recent integrated resource plan for which the applicable state agency approved the retirement or repowering of the unit subject to the ELGs, or other documentation supporting that the electric generating unit will permanently cease the combustion of coal by December 31, 2034. The Notice of Planned Participation shall also include, for each such electric generating unit, a timeline to achieve the permanent cessation of coal combustion. Each timeline shall include interim milestones and the projected dates of completion. Finally, the Notice of Planned Participation shall also include, for each such electric generating unit, a certification statement that the facility is in compliance with the following limitations or standards:
(i) The applicable limitations or standards for FGD wastewater in §423.13(g)(1) or (g)(2)(ii) or (iii) or §423.16(e)(1) or (2); and
(ii) The applicable limitations or standards for bottom ash transport water in §423.13(k)(1) or (k)(2)(i) or (iii) or §423.16(g)(1) or (2).
(3) Annual progress report. Annually after submission of the Notice of Planned Participation in paragraph (h)(1) of this section, a progress report shall be filed with the permitting authority, or control authority in the case of an indirect discharger.
(4) Contents. An annual progress report shall detail the completion of any interim milestones listed in the Notice of Planned Participation since the previous progress report, provide a narrative discussion of any completed, missed, or delayed milestones, and provide updated milestones. An annual progress report shall also include one of the following:
(i) A copy of the official suspension filing (or equivalent filing) made to the facility's reliability authority detailing the conversion to a fuel source other than coal;
(ii) A copy of the official retirement filing (or equivalent filing) made to the facility's reliability authority which must include a waiver of recission rights; or
(iii) An initial certification, or recertification for subsequent annual progress reports, containing either a statement that the facility will make the filing required in paragraph (h)(4)(i) of this section or a statement that the facility will make the filing required in paragraph (h)(4)(ii) of this section. The certification or recertification must include the estimated date that such a filing will be made.
(iv) A facility shall not include a certification or recertification under paragraph (h)(4)(iii) of this section in the final annual progress report submitted prior to permanent cessation of coal combustion. Rather, this final annual progress report must include the filing under paragraph (h)(4)(i) or (ii) of this section.
(i) Requirements for facilities seeking protections under this part —(1) Certification statement. For sources seeking to apply the protections of the permit conditions in §423.18(a), and for each instance that §423.18(a) is applied, a one-time certification shall be submitted to the permitting authority, or control authority in the case of an indirect discharger, no later than:
(i) In the case of an order or agreement under §423.18(a)(1), 30 days from receipt of the order or agreement attached pursuant to paragraph (i)(2)(ii) of this section; or
(ii) In the case of an “Emergency” or “Major Disaster” under §423.18(a)(2), 30 days from the date that a load balancing need arose.
(2) Contents. A certification statement must include the following:
(i) The qualifying event from the list in §423.18(a), the individual or entity that issued or triggered the event, and the date that such an event was issued or triggered.
(ii) A copy of any documentation of the qualifying event from the individual or entity listed under paragraph (i)(2)(i) of this section, or, where such documentation does not exist, other documentation with indicia of reliability for the permitting authority to confirm the qualifying event.
(iii) An analysis and accompanying narrative discussion which demonstrates that an electric generating unit would have qualified for the subcategory at issue absent the event detailed in paragraph (i)(2)(i) of this section, including the material data, assumptions, and methods used.
(3) Termination of need statement. For sources filing a certification statement under paragraph (i)(1) of this section, and for each such certification statement, a one-time termination of need statement shall be submitted to the permitting authority, or control authority in the case of an indirect discharger, no later than 30 days from when the source is no longer subject to increased production from the qualifying event.
(4) Contents. A termination of need statement must include a narrative discussion including the date the qualifying event terminated, or if it has not terminated, why the source believes the capacity utilization will no longer be elevated to a level requiring the protection of §423.18.
(j) Requirements for facilities voluntarily meeting limits in this part —(1) Notice of Planned Participation. For sources opting to comply with the Voluntary Incentives Program requirements of §423.13(g)(3)(i) by December 31, 2028, a Notice of Planned Participation shall be made to the permitting authority no later than October 13, 2021.
(2) Contents. A Notice of Planned Participation shall identify the facility opting to comply with the Voluntary Incentives Program requirements of §423.13(g)(3)(i), specify what technology or technologies are projected to be used to comply with those requirements, and provide a detailed engineering dependency chart and accompanying narrative demonstrating when and how the system(s) and any accompanying disposal requirements will be achieved by December 31, 2028.
(3) Annual progress report. After submission of the Notice of Planned Participation in paragraph (j)(1) of this section, a progress report shall be filed with the permitting authority, or control authority in the case of an indirect discharger.
(4) Contents. An annual progress report shall detail the completion of interim milestones presented in the engineering dependency chart from the Notice of Planned Participation since the previous progress report, provide a narrative discussion of completed, missed, or delayed milestones, and provide updated milestones.
(5) Rollover certification. Where, prior to October 13, 2020, a discharger has already provided a notice to the permitting authority of opting to comply with the Voluntary Incentives Program requirements of §423.13(g)(3)(i), such notice will satisfy paragraph (j)(1) of this section. However, where details required by paragraph (j)(2) of this section were missing from the previously provided notice, those details must be provided in the first annual progress report, no later than October 13, 2021.
(k) Requirements for facilities with discharges of unmanaged combustion residual leachate —(1) Annual combustion residual leachate monitoring report. In addition to reporting pursuant to 40 CFR part 127, each facility with discharges of unmanaged combustion residual leachate meeting the definition in §423.11(ff)(1) shall file an annual combustion residual leachate monitoring report each calendar year to the permitting authority.
(2) Contents. The annual combustion residual leachate monitoring report shall provide the following monitoring data for each pollutant listed in table 1 to paragraph (k)(2)(v) of this section. For paragraphs (k)(2)(ii) and (iii) of this section the report shall also describe the location of monitoring wells, screening depth, and frequency of sampling. The report shall include summary statistics including monthly minimum, maximum, and average concentrations for each pollutant. The report shall be supported by an appendix of all samples.
(i) A list of coal combustion residual landfills and surface impoundments which the permitting authority has determined are point sources with functional equivalent direct discharges.
(ii) Groundwater monitoring data as the combustion residual leachate leaves each of the landfills or surface impoundment listed in paragraph (k)(2)(i) of this section.
(iii) Groundwater monitoring at the point the combustion residual leachate enters a surface waterbody.
(iv) Effluent monitoring data reported pursuant to 40 CFR part 127.
(v) Summary statistics for the data described in paragraphs (k)(2)(ii) through (iv) of this section including the monthly average and daily maximum of each pollutant in the table 1 to this paragraph (k)(2)(v) and a comparison to any limitation in §423.13(l)(2)(ii).
BAT Treated Pollutants in Combustion Residual Leachate | |
---|---|
Antimony | Magnesium |
Arsenic | Manganese |
Barium | Mercury |
Beryllium | Molybdenum |
Cadmium | Nickel |
Chromium | Thallium |
Cobalt | Titanium |
Copper | Vanadium |
Lead | Zinc |
(l) Requirements for facilities seeking to transfer between applicable limitations in a permit under this part —(1) Notice of Planned Participation. For sources which have filed a Notice of Planned Participation under paragraph (f)(1), (g)(1), or (j)(1) of this section and intend to make changes that would qualify them for a different set of requirements under §423.13(o), a Notice of Planned Participation shall be made to the permitting authority, or to the control authority in the case of an indirect discharger, no later than the dates stated in §423.13(o)(1).
(2) Contents. A Notice of Planned Participation shall include a list of the electric generating units for which the source intends to change compliance alternatives. For each such electric generating unit, the notice shall list the specific provision under which this transfer will occur, the reason such a transfer is warranted, and a narrative discussion demonstrating that each electric generating unit will be able to maintain compliance with the relevant provisions.
(m) Notice of material delay —(1) Notice. Within 30 days of experiencing a material delay in the milestones set forth in paragraph (g)(2), (h)(2), or (j)(2) of this section and where such a delay may preclude permanent cessation of coal combustion or compliance with the voluntary incentives program limitations by December 31, 2028, a facility shall file a notice of material delay with the permitting authority, or control authority in the case of an indirect discharger.
(2) Contents. The contents of such a notice shall include the reason for the delay, the projected length of the delay, and a proposed resolution to maintain compliance.
(n) Requirements for facilities seeking a one-year flexibility to discharge permeate or distillate from an FGD wastewater or combustion residual leachate treatment system designed to achieve limitations in this part —(1) Initial request letter. When filing a permit application or permit modification request, a facility seeking to discharge permeate or distillate during the first year of operations after the date determined in §423.13(g)(4)(i)(A) or (l)(1)(i)(A) shall include a letter requesting this flexibility from the permitting authority. The initial request letter shall detail the expected type, frequency, duration, and necessity of discharge. The initial request letter shall also state that this period of discharge was not included for consideration in establishing the applicability timing under §423.11(t)(3).
(2) Discharge monitoring and reporting. Upon inclusion in the permit of the flexibility to discharge the permeate or distillate as requested in paragraph (n)(1) of this section, the permitting authority shall also extend any existing monitoring and reporting requirements (e.g., arsenic monitoring).
(o) Certification for wastewater generated by a 10-year, 24-hour or longer duration storm event —(1) Storm Event Discharge Certification Statement. For sources seeking to discharge low volume wastewater which would otherwise be considered FGD wastewater, bottom ash transport water, or combustion residual leachate but for a storm event exceeding a 10-year, 24-hour or longer duration storm event, a Storm Event Discharge Certification Statement shall be submitted to the permitting authority, or control authority in the case of an indirect discharger, no later than five business days from the last discharge.
(2) Signature and certification. The certification statement must be signed and certified by a professional engineer.
(3) Contents. A Storm Event Discharge Certification shall include the following:
(i) A statement that the professional engineer is a licensed professional engineer.
(ii) A statement that the professional engineer is familiar with the requirements in this part.
(iii) A statement that the professional engineer is familiar with the facility.
(iv) A statement that the facility experienced a storm event exceeding a 10-year, 24-hour or longer duration, including specifics of the actual storm event that are sufficient for a third party to verify the accuracy of the statement.
(v) A statement that a discharge of low volume wastewater that would otherwise meet the definition of FGD wastewater, bottom ash transport water, or combustion residual leachate was necessary, including a list of the best management practices at the site and a narrative discussion of the ability of on-site equipment and practices to manage the wastewater.
(vi) The duration and volume of any such discharge.
(vii) A statement that the discharge does not otherwise violate any other limitation or permit condition.
The Environmental Protection Agency (EPA) is finalizing multiple actions under section 111 of the Clean Air Act (CAA) addressing greenhouse gas (GHG) emissions from fossil fuel-fired electric generating units (EGUs). First, the EPA is finalizing the repeal of the Affordable Clean Energy (ACE) Rule. Second, the EPA is finalizing emission guidelines for GHG emissions from existing fossil fuel-fired steam generating EGUs, which include both coal-fired and oil/gas-fired steam generating EGUs. Third, the EPA is finalizing revisions to the New Source Performance Standards (NSPS) for GHG emissions from new and reconstructed fossil fuel-fired stationary combustion turbine EGUs. Fourth, the EPA is finalizing revisions to the NSPS for GHG emissions from fossil fuel-fired steam generating units that undertake a large modification, based upon the 8-year review required by the CAA. The EPA is not finalizing emission guidelines for GHG emissions from existing fossil fuel-fired stationary combustion turbines at this time; instead, the EPA intends to take further action on the proposed emission guidelines at a later date.
DATES: This final rule is effective on July 8, 2024, published in the Federal Register May 9, 2024, page 39798.
View final rule.
Hi everyone! Welcome to the monthly news roundup video, where we’ll go over 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!
OSHA’s worker walkaround rule takes effect May 31st. It expands the criteria for who employees can authorize to act as their representative during an inspection.
Between 2015 and 2022, there were about 1,500 worker injuries involving food processing machinery. A new OSHA alert raises awareness of these hazards. It addresses hazard recognition, corrective measures, and workers’ rights.
The National Institute for Occupational Safety and Health (NIOSH) seeks stakeholder input on protecting outdoor workers from wildfire smoke. The agency intends to develop a hazard review document that provides recommendations to protect workers.
The Mine Safety and Health Administration published a final rule that lowers miners’ exposure to silica dust. It also revises the standard to reflect the latest advances in respiratory protection and practices.
OSHA released 2023 injury and illness data. The agency provides public access to this information in an effort to identify unsafe conditions and workplace hazards that may lead to injuries and illnesses.
And turning to environmental news, EPA finalized a rule to designate two widely used PFAS as hazardous substances under the Comprehensive Environmental Response, Compensation, and Liability Act, or CERCLA. The rule requires immediate release notifications for the two PFAS. It also gives EPA the authority to hold polluters responsible for contamination.
Thanks for tuning in to the monthly news roundup. We’ll see you next month!
Hi everyone! Welcome to the monthly news roundup video, where we’ll go over 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! The Office of Management and Budget completed its review of OSHA’s worker walkaround final rule on March 20. The next step is publication in the Federal Register. The rule expands the criteria for who employees can authorize to act as their representative during an OSHA inspection.
Stand Up 4 Grain Safety Week was held the week of March 25. This annual event brings attention to hazards in the grain handling and storage industry and encourages employers to focus on safe work practices.
Over 100 people die in ladder-related deaths each year, and thousands more suffer disabling injuries. During Ladder Safety Month, which is held each March, the American Ladder Institute promotes ladder safety to decrease the number of injuries and fatalities.
Between 2010 and 2023, 11 miners drowned in incidents involving submerged mobile equipment. In response, the Mine Safety and Health Administration issued a safety alert. It recommends measures miners should take when operating equipment near water.
And finally, turning to environmental news, EPA finalized amendments to its Risk Management Program in an effort to improve safety at facilities that use and distribute hazardous chemicals. The rule seeks to improve chemical process safety; assist in planning for, preparing for, and responding to accidents; and increase public awareness of chemical hazards at regulated sites.
Thanks for tuning in to the monthly news roundup. We’ll see you next month!
The Environmental Protection Agency (EPA or the Agency) is finalizing a rule to address the unreasonable risk of injury to health presented by methylene chloride under its conditions of use. TSCA requires that EPA address by rule any unreasonable risk of injury to health or the environment identified in a TSCA risk evaluation and apply requirements to the extent necessary so that the chemical no longer presents unreasonable risk. EPA's final rule will, among other things, prevent serious illness and death associated with uncontrolled exposures to the chemical by preventing consumer access to the chemical, restricting the industrial and commercial use of the chemical while also allowing for a reasonable transition period where an industrial and commercial use of the chemical is being prohibited, provide a time-limited exemption for a critical or essential use of methylene chloride for which no technically and economically feasible safer alternative is available, and protect workers from the unreasonable risk of methylene chloride while on the job.
DATES: This final rule is effective on July 8, 2024, published in the Federal Register, May 8, 2024.
View final rule.
§751.5 Definitions. | ||
definitions for “Article”, “Authorized person”, “Owner or operator”, “Potentially exposed person”, “Product”, “Regulated area”, and “Retailer” | Added | View text |
§751.101 General. | ||
Entire section | Revised | View text |
§751.103 Definitions. | ||
definition of “Distribution in commerce” | Revised | View text |
definitions for “ECEL”, “ECEL action level”, and “EPA STEL” | Revised | View text |
§751.105 Consumer paint and coating removal. | ||
Section heading | Revised | View text |
§751.107 Downstream notification. | ||
Entire section as 751.111 | Redesignated | View text |
New 751.107 | Added | View text |
§751.109 Recordkeeping. | ||
Entire section as 751.113 | Redesignated | View text |
New 751.109 | Added | View text |
§751.115 Exemptions. | ||
Entire section | Added | View text |
§751.117 Interim requirements for paint and coating removal for the refinishing of wooden furniture, decorative pieces, and architectural fixtures of artistic, cultural, or historic value. | ||
Entire section | Added | View text |
New Text
§751.101 General.
(a) Applicability. This subpart sets certain restrictions on the manufacture (including import), processing, distribution in commerce, use, and disposal of methylene chloride (CASRN 75-09-2) to prevent unreasonable risks of injury to health.
(b) De minimis threshold. Unless otherwise specified in this subpart, the prohibitions and restrictions of this subpart do not apply to products containing methylene chloride at thresholds less than 0.1 percent by weight. This provision does not apply to 751.105.
§751.103 Definitions.
* * * * *
Distribution in commerce has the same meaning as in section 3 of the Act, except that the term does not include retailers for purposes of §§751.111 and 751.113.
* * * * *
§751.105 Prohibition of manufacturing (including import), processing, and distribution in commerce related to consumer paint and coating removal.
§751.107 Other prohibitions of manufacturing (including import), processing, distribution in commerce, and use.
(a) Applicability.(1) This section applies to all manufacturing (including import), processing, and distribution in commerce of methylene chloride for consumer use other than for the paint and coating removal use addressed under 751.105.
(2) This section applies to:
(i) All manufacturing (including import), processing, and distribution in commerce of methylene chloride for industrial or commercial use, other than for the conditions of use addressed under 751.109(a); and
(ii) All commercial or industrial use of methylene chloride, other than the conditions of use addressed under 751.109(a).
(3) This section does not apply to manufacturing, processing, or distribution in commerce of methylene chloride solely for export that meets the conditions described in TSCA section 12(a)(1)(A) and (B).
(b) Prohibitions.(1) After February 3, 2025, all persons are prohibited from distributing in commerce (including making available) methylene chloride, including any methylene chloride-containing products, to retailers for any use.
(2) After May 5, 2025, all retailers are prohibited from distributing in commerce (including making available) methylene chloride, including any methylene chloride-containing products, for any use.
(3) After May 5, 2025, all persons are prohibited from manufacturing (including import) methylene chloride, for the uses listed in paragraphs (a)(1) and (2) of this section except for those uses specified in paragraphs (b)(7) through (9) of this section.
(4) After August 1, 2025, all persons are prohibited from processing methylene chloride, including any methylene chloride-containing products, for the uses listed in paragraphs (a)(1) and (2) of this section except for those uses specified in paragraphs (b)(7) through (9) of this section.
(5) After January 28, 2026, all persons are prohibited from distributing in commerce (including making available) methylene chloride, including any methylene chloride-containing products, for any use described in paragraphs (a)(1) and (2) of this section except for those uses specified in paragraphs (b)(7) through (9) of this section.
(6) After April 28, 2026, all persons are prohibited from industrial or commercial use of methylene chloride, including any methylene chloride containing products, for the uses listed in paragraph (a)(2) of this section except for those uses specified in paragraphs (b)(7) through (9) of this section.
(7) After May 8, 2034, all persons are prohibited from manufacturing (including import), processing, distribution in commerce, or use of methylene chloride, including any methylene chloride containing products, for industrial or commercial use in an emergency by the National Aeronautics and Space Administration or its contractors as described in 751.115(b).
(8) After May 8, 2029, all persons are prohibited from manufacturing (including import), processing, distribution in commerce, or use of methylene chloride, including any methylene chloride containing products, for industrial or commercial use for paint and coating removal for refinishing of wooden furniture, decorative pieces and architectural fixtures of artistic, cultural, or historic significance, with interim requirements as described in 751.117.
(9) After May 8, 2029, all persons are prohibited from manufacturing (including import), processing, distribution in commerce, or use of methylene chloride, including any methylene chloride-containing products, for industrial or commercial use for adhesives and sealants in aircraft, space vehicle, and turbine applications for structural and safety critical non-structural applications.
§751.109 Workplace Chemical Protection Program.
(a) Applicability. The provisions of this section apply to the following conditions of use of methylene chloride, including manufacturing and processing for export, except to the extent the conditions of use are prohibited by §§751.105 and 751.107:
(1) Manufacturing (domestic manufacture);
(2) Manufacturing (import);
(3) Processing: as a reactant;
(4) Processing: incorporation into a formulation, mixture, or reaction product;
(5) Processing: repackaging;
(6) Processing: recycling;
(7) Industrial and commercial use as a laboratory chemical;
(8) Industrial or commercial use for paint and coating removal from safety-critical, corrosion-sensitive components of aircraft and spacecraft;
(9) Industrial or commercial use as a bonding agent for solvent welding;
(10) Industrial and commercial use as a processing aid;
(11) Industrial and commercial use for plastic and rubber products manufacturing;
(12) Industrial and commercial use as a solvent that becomes part of a formulation or mixture, where that formulation or mixture will be used inside a manufacturing process, and the solvent (methylene chloride) will be reclaimed; and
(13) Disposal.
(b) Relationship to other regulations. For purposes of this section:
(1) Any provisions applying to “employee” in 29 CFR 1910.132, 1910.134, and 1910.1052 also apply equally to potentially exposed persons; and
(2) Any provisions applying to “employer” in 29 CFR 1910.132, 1910.134, and 1910.1052 also apply equally to any owner or operator for the regulated area.
(c) Exposure limits —(1) ECEL. The owner or operator must ensure that no person is exposed to an airborne concentration of methylene chloride in excess of 2 parts of methylene chloride per million parts of air (2 ppm) as an 8-hour TWA after February 8, 2027 for Federal agencies and Federal contractors acting for or on behalf of the Federal Government, August 1, 2025 for other owners and operators, or beginning 4 months after introduction of methylene chloride into the workplace if methylene chloride use commences after May 5, 2025, consistent with paragraphs (d) through (f) of this section.
(2) EPA STEL. The owner or operator must ensure that no person is exposed to an airborne concentration of methylene chloride in excess of 16 parts of methylene chloride per million parts of air (16 ppm) as determined over a sampling period of 15 minutes after February 8, 2027 for Federal agencies and Federal contractors acting for or on behalf of the Federal Government, August 1, 2025 for other owners and operators, or beginning 4 months after introduction of methylene chloride into the workplace if methylene chloride use commences after May 5, 2025, consistent with paragraphs (d) through (f) of this section.
(3) Regulated areas. The owner or operator must:
(i) Establish and maintain regulated areas in accordance with 29 CFR 1910.1052(e)(2) and (4) through (7) by February 8, 2027 for Federal agencies and Federal contractors acting for or on behalf of the Federal Government, August 1, 2025 for other owners and operators, or within 3 months after receipt of the results of any monitoring data consistent with paragraph (d) of this section.
(ii) Establish a regulated area wherever a potentially exposed person's exposure to airborne concentrations of methylene chloride exceeds or can reasonably be expected to exceed either the ECEL or EPA STEL.
(iii) Demarcate regulated areas from the rest of the workplace in any manner that adequately establishes and alerts potentially exposed persons to the boundaries of the area and minimizes the number of authorized persons exposed to methylene chloride within the regulated area.
(iv) Restrict access to the regulated area by any potentially exposed person who lacks proper training, personal protective equipment, or is otherwise unauthorized to enter.
(d) Exposure monitoring —(1) In general —(i) Characterization of exposures. Owners or operators must determine each potentially exposed person's exposure, without regard to respiratory protection, by either:
(A) Taking a personal breathing zone air sample of each potentially exposed person's exposure; or
(B) Taking personal breathing zone air samples that are representative of each potentially exposed person's exposure.
(ii) Representative samples. Owners or operators are permitted to consider personal breathing zone air samples to be representative of each potentially exposed person's exposure, without regard to respiratory protection, when they are taken as follows:
(A) ECEL. The owner or operator has taken one or more personal breathing zone air samples for at least one potentially exposed person in each job classification in a work area during every work shift, and the person sampled is expected to have the highest methylene chloride exposure.
(B) EPA STEL. The owner or operator has taken one or more personal breathing zone air samples which indicate the highest likely 15-minute exposures during such operations for at least one potentially exposed person in each job classification in the work area during every work shift, and the person sampled is expected to have the highest methylene chloride exposure.
(C) Exception. Personal breathing zone air samples taken during one work shift may be used to represent potentially exposed person exposures on other work shifts where the owner or operator can document that the tasks performed and conditions in the workplace are similar across shifts.
(iii) Accuracy of monitoring. Owners or operators must ensure that the methods used to perform exposure monitoring produce results that are accurate to a confidence level of 95%, and are:
(A) Within plus or minus 25% for airborne concentrations of methylene chloride above the ECEL or the EPA STEL; or
(B) Within plus or minus 35% for airborne concentrations of methylene chloride at or above the ECEL action level but at or below the ECEL.
(iv) Currency of monitoring data. Owners or operators are not permitted to rely on monitoring data that is more than 5 years old to demonstrate compliance with initial or periodic monitoring requirements for either the ECEL or the EPA STEL.
(2) Initial monitoring. By November 9, 2026 for Federal agencies and Federal contractors acting for or on behalf of the Federal Government, by May 5, 2025 for other owners and operators, or within 30 days of introduction of methylene chloride into the workplace, whichever is later, each owner or operator covered by this section must perform an initial exposure monitoring to determine each potentially exposed person's exposure, unless:
(i) An owner or operator has objective data generated within the last 5 years prior to May 8, 2024 that demonstrates to EPA that methylene chloride cannot be released in the workplace in airborne concentrations at or above the ECEL action level (1-ppm 8-hour TWA) or above the EPA STEL (16 ppm 15-minute TWA) and that the data represents the highest methylene chloride exposures likely to occur under conditions of use described in paragraph (a) of this section; or
(ii) Where potentially exposed persons are exposed to methylene chloride for fewer than 30 days per year, and the owner or operator has measurements by direct-metering devices which give immediate results and which provide sufficient information regarding exposures to determine and implement the control measures that are necessary to reduce exposures to below the ECEL action level and EPA STEL.
(3) Periodic monitoring. The owner or operator must establish an exposure monitoring program for periodic monitoring of exposure to methylene chloride in accordance with table 1.
Air concentration condition observed during initial exposure monitoring | Periodic monitoring requirement |
---|---|
If the initial exposure monitoring concentration is below the ECEL action level and at or below the EPA STEL | ECEL and EPA STEL periodic monitoring at least once in every 5 years. |
If the initial exposure monitoring concentration is below the ECEL action level and above the EPA STEL | ECEL periodic required at least once every 5 years, and EPA STEL periodic monitoring required every 3 months. |
If the initial exposure monitoring concentration is at or above the ECEL action level and at or below the ECEL; and at or below the EPA STEL | ECEL periodic monitoring every 6 months. |
If the initial exposure monitoring concentration is at or above the ECEL action level and at or below the ECEL; and above the EPA STEL | ECEL periodic monitoring every 6 months and EPA STEL periodic monitoring every 3 months. |
If the initial exposure monitoring concentration is above the ECEL and below, at, or above the EPA STEL | ECEL periodic monitoring every 3 months and EPA STEL periodic monitoring every 3 months. |
If 2 consecutive monitoring events have taken place at least 7 days apart that indicate that potential exposure has decreased from above the ECEL to at or below the ECEL, but at or above the ECEL action level | Transition from ECEL periodic monitoring frequency from every 3 months to every 6 months. |
If 2 consecutive monitoring events have taken place at least 7 days apart that indicate that potential exposure has decreased to below the ECEL action level and at or below the EPA STEL | Transition from ECEL periodic monitoring frequency from every 6 months to once every 5 years. The second consecutive monitoring event will delineate the new date from which the next 5-year periodic exposure monitoring must occur. |
If the owner or operator engages in any conditions of use described in paragraph (a) of this section and is required to monitor either the ECEL or EPA STEL in a 3-month interval, but does not engage in any of those uses for the entirety of the 3-month interval | The owner or operator may forgo the upcoming periodic monitoring event. However, documentation of cessation of use of methylene chloride must be maintained, and initial monitoring is required when the owner or operator resumes or starts any of the conditions of use described in paragraph (a) of this section. |
Owner or operator engages in any conditions of use described in paragraph (a) of this section and is required to monitor the ECEL in a 6-month interval, but does not engage in any of those uses for the entirety of the 6-month interval | The owner or operator may forgo the upcoming periodic monitoring event. However, documentation of cessation of the condition(s) of use must be maintained until periodic monitoring resumes, and initial monitoring is required when the owner or operator resumes or starts any of the conditions of use described in paragraph (a) of this section. |
(4) Additional monitoring. The owner or operator must conduct the exposure monitoring required by paragraph (d)(2) of this section within 30 days after any change that may reasonably be expected to introduce additional sources of exposure to methylene chloride, or otherwise result in increased exposure to methylene chloride compared to the most recent monitoring event. Examples of situations that may require additional monitoring include changes in production, process, control equipment, or work practices, or a leak, rupture, or other breakdown.
(5) Notification of monitoring results.(i) The owner or operator must inform potentially exposed persons of monitoring results within 15 working days.
(ii) This notification must include the following:
(A) Exposure monitoring results;
(B) Identification and explanation of the ECEL, ECEL Action Level, and EPA STEL;
(C) Whether the airborne concentration of methylene chloride exceeds the ECEL action level, ECEL or the EPA STEL;
(D) If the ECEL or EPA STEL is exceeded, descriptions of actions taken by the owner or operator to reduce exposure in accordance with paragraph (e)(1)((i) of this section;
(E) Explanation of any required respiratory protection provided in accordance with as paragraphs (e)(1)(ii) and (f) of this section;
(F) Quantity of methylene chloride in use at the time of monitoring;
(G) Location of methylene chloride use at the time of monitoring;
(H) Manner of methylene chloride use at the time of monitoring; and
(I) Identified releases of methylene chloride.
(iii) Notice must be provided in plain language writing, in a language that the person understands, to each potentially exposed person or posted in an appropriate and accessible location outside the regulated area with an English-language version and a non-English language version representing the language of the largest group of workers who do not read English.
(6) Observation of monitoring.(i) The owner or operator must provide affected potentially exposed persons an opportunity to observe exposure monitoring conducted in accordance with this paragraph (d) that is representative of the potentially exposed person's exposure.
(ii) The owner or operator must ensure that potentially exposed persons are provided with personal protective equipment appropriate for the observation of monitoring.
(e) ECEL control procedures and plan— (1) Methods of compliance.(i) By May 10, 2027 for Federal agencies and Federal contractors acting for or on behalf of the Federal Government, or by October 30, 2025 for other owners and operators, the owner or operator must institute one or a combination of elimination, substitution, engineering controls, work practices, or administrative controls to reduce exposure to or below the ECEL and EPA STEL except to the extent that the owner or operator can demonstrate that such controls are not feasible.
(ii) If the feasible controls, required by paragraph (e)(1)(i) of this section that can be instituted do not reduce exposures for potentially exposed persons to or below the ECEL or EPA STEL, then the owner or operator must use such controls to reduce exposure to the lowest levels achievable by these controls and must supplement those controls with the use of respiratory protection that complies with the requirements of paragraph (f) of this section to reduce exposures to or below the ECEL or EPA STEL.
(iii) Where an owner or operator cannot demonstrate exposure below the ECEL, including through the use of all feasible engineering controls, work practices, or administrative controls as described in paragraph (e)(1)(i) of this section, and, has not demonstrated that it has appropriately supplemented with respiratory protection that complies with the requirements of paragraphs (e)(1)(ii) and (f) of this section, this will constitute a failure to comply with the ECEL.
(iv) For the Department of Defense and Federal contractors acting for or on behalf of the Department of Defense, in the event that ongoing or planned construction is necessary to implement the feasible controls required by paragraph (e)(1)(i) of this section such that no one is exposed above the ECEL or EPA STEL, the deadlines in paragraph (e)(1)(i) of this section are extended to May 7, 2029. Ongoing or planned construction efforts to address exposures above the ECEL and EPA STEL must be documented in the exposure control plan required by paragraph (e)(2) of this section.
(2) Exposure control plan. By May 10, 2027 for Federal agencies and Federal contractors acting for or on behalf of the Federal Government, or by October 30, 2025 for other owners and operators, the owner or operator must develop and implement an exposure control plan.
(i) Exposure control plan contents. The exposure control plan must include documentation of the following:
(A) Identification of exposure controls that were considered, including those that were used or not used to meet the requirements of paragraph (e)(1)(i) of this section, in the following sequence—elimination, substitution, engineering controls, and work practices and administrative controls;
(B) For each exposure control considered, a rationale for why the exposure control was selected or not selected based on feasibility, effectiveness, and other relevant considerations;
(C) A description of actions the owner or operator must take to implement the exposure controls selected, including proper installation, regular inspections, maintenance, training, or other actions;
(D) A description of regulated areas, how they are demarcated, and persons authorized to enter the regulated areas;
(E) A description of activities conducted by the owner or operator to review and update the exposure control plan to ensure effectiveness of the exposure controls, identify any necessary updates to the exposure controls, and confirm that all persons are properly implementing the exposure controls; and
(F) An explanation of the procedures for responding to any change that may reasonably be expected to introduce additional sources of exposure to methylene chloride, or otherwise result in increased exposure to methylene chloride, including procedures for implementing corrective actions to mitigate exposure to methylene chloride.
(ii) Exposure control plan requirements.(A) The owner or operator must not implement a schedule of personnel rotation as a means of compliance with the ECEL.
(B) The owner or operator must maintain the effectiveness of any controls, instituted under paragraph (e) of this section.
(C) The exposure control plan must be reviewed and updated as necessary, but at least every 5 years, to reflect any significant changes in the status of the owner or operator's approach to compliance with paragraphs (c) through (e) of this section.
(iii) Availability of exposure control plan.(A) Owners or operators must make the exposure control plan and associated records, including exposure monitoring, respiratory protection program implementation, and dermal protection program implementation records, available to potentially exposed persons.
(B) Owners or operators must notify potentially exposed persons of the availability of the plan and associated records within 30 days of the date that the exposure control plan is completed and at least annually thereafter. The notification must be provided in accordance with the requirements of paragraph (d)(5)(iii) of this section.
(C) Upon request by the potentially exposed person, the owner or operator must provide the specified records at a reasonable time, place, and manner. If the owner or operator is unable to provide the requested records within 15 days, the owner or operator must, within those 15 days, inform the potentially exposed person requesting the record(s) of the reason for the delay and the earliest date when the record can be made available.
(3) Respirator requirements. The owner or operator must supply a respirator, selected in accordance with paragraph (f) of this section, to each potentially exposed person who enters a regulated area and must ensure each potentially exposed person uses that respirator whenever methylene chloride exposures may exceed the ECEL or EPA STEL.
(f) Respiratory protection —(1) Respirator conditions. After February 8, 2027 for Federal agencies and Federal contractors acting for or on behalf of the Federal Government, after August 1, 2025 for other owners and operators, or within 3 months after receipt of the results of any exposure monitoring as described in paragraph (d) of this section, owners or operators must provide respiratory protection to all potentially exposed persons in the regulated area as outlined in paragraph (c)(3) of this section, and according to the provisions outlined in 29 CFR 1910.134(a) through (l) (except 29 CFR 1910.134(d)(1)(iii)) and as specified in this paragraph (f) for potentially exposed persons exposed to methylene chloride in concentrations above the ECEL or the EPA STEL. For the purpose of this paragraph (f), the maximum use concentration (MUC) as used in 29 CFR 1910.134 must be calculated by multiplying the assigned protection factor (APF) specified for a respirator by the ECEL or EPA STEL.
(2) Respirator selection criteria. The type of respiratory protection that regulated entities must select and provide to potentially exposed persons in accordance with 29 CFR 1910.1052(g)(3)(i), is directly related to the monitoring results, as follows:
(i) If the measured exposure concentration is at or below the ECEL or EPA STEL: no respiratory protection is required.
(ii) If the measured exposure concentration is above 2 ppm and less than or equal to 50 ppm: the respirator protection required is any NIOSH Approved® supplied-air respirator (SAR) or airline respirator in a continuous-flow mode equipped with a loose-fitting facepiece or helmet/hood (APF 25).
(iii) If the measured exposure concentration is above 50 ppm and less than or equal to 100 ppm the respirator protection required is:
(A) Any NIOSH Approved® Supplied-Air Respirator (SAR) or airline respirator in a demand mode equipped with a full facepiece (APF 50); or
(B) Any NIOSH Approved® Self-Contained Breathing Apparatus (SCBA) in demand-mode equipped with a full facepiece or helmet/hood (APF 50).
(iv) If the measured exposure concentration is unknown or at any value above 100 ppm and up to 2,000 ppm the respirator protection required is:
(A) Any NIOSH Approved® Supplied-Air Respirator (SAR) or airline respirator in a continuous-flow mode equipped with a full facepiece or certified helmet/hood that has been tested to demonstrate performance at a level of a protection of APF 1,000 or greater. (APF 1,000); or
(B) Any NIOSH Approved® Supplied-Air Respirator (SAR) or airline respirator in pressure-demand or other positive-pressure mode equipped with a full facepiece and an auxiliary self-contained air supply (APF 1,000); or
(C) Any NIOSH Approved® Self-Contained Breathing Apparatus (SCBA) in a pressure-demand or other positive-pressure mode equipped with a full facepiece or certified helmet/hood (APF 10,000).
(3) Minimal respiratory protection. Requirements outlined in paragraph (e)(2) of this section represent the minimum respiratory protection requirements, such that any respirator affording a higher degree of protection than the required respirator may be used.
(g) Dermal protection.(1) After February 8, 2027 for Federal agencies and Federal contractors acting for or on behalf of the Federal Government, or after August 1, 2025 for other owners and operators, owners or operators must require the donning of gloves that are chemically resistant to methylene chloride with activity-specific training where dermal contact with methylene chloride is possible, after application of the requirements in paragraph (e) of this section, in accordance with the NIOSH hierarchy of controls.
(2) Owners or operators must minimize and protect potentially exposed persons from dermal exposure in accordance with 29 CFR 1910.1052(h) and (i).
(h) Training. Owners or operators must provide training in accordance with 29 CFR 1910.1052(l)(1) through (6) to potentially exposed persons prior to or at the time of initial assignment to a job involving potential exposure to methylene chloride. In addition, if respiratory protection or PPE must be worn within a regulated area, owners or operators must provide training in accordance with 29 CFR 1910.132(f) to potentially exposed persons within that regulated area.
§751.111 Downstream notification.
(a) After August 26, 2019, and before October 7, 2024, each person who manufactures (including imports), and before December 4, 2024 processes or distributes in commerce methylene chloride for any use must, prior to or concurrent with the shipment, notify companies to whom methylene chloride is shipped, in writing, of the restrictions described in §751.105. Notification must occur by inserting the following text in section 1(c) and section 15 of the SDS provided with the methylene chloride or with any methylene chloride-containing product:
This chemical/product is not and cannot be distributed in commerce (as defined in TSCA section 3(5)) or processed (as defined in TSCA section 3(13)) for consumer paint or coating removal.
(b) Beginning on October 7, 2024, each person who manufactures (including import) methylene chloride for any use must, prior to or concurrent with the shipment, notify companies to whom methylene chloride is shipped, in writing, of the restrictions described in this subpart in accordance with paragraph (d) of this section.
(c) Beginning on December 4, 2024, each person who processes or distributes in commerce methylene chloride or methylene chloride-containing products for any use must, prior to or concurrent with the shipment, notify companies to whom methylene chloride is shipped, in writing, of the restrictions described in this subpart in accordance with paragraph (d) of this section.
(d) The notification required under paragraphs (b) and (c) of this section must occur by inserting the following text in section 1(c) and section 15 of the SDS provided with the methylene chloride or with any methylene chloride-containing product:
After February 3, 2025, this chemical substance (as defined in TSCA section 3(2))/product cannot be distributed in commerce to retailers. After January 28, 2026, this chemical substance (as defined in TSCA section 3(2))/product is and can only be distributed in commerce or processed with a concentration of methylene chloride equal to or greater than 0.1% by weight for the following purposes: (1) Processing as a reactant; (2) Processing for incorporation into a formulation, mixture, or reaction product; (3) Processing for repackaging; (4) Processing for recycling; (5) Industrial or commercial use as a laboratory chemical; (6) Industrial or commercial use as a bonding agent for solvent welding; (7) Industrial and commercial use as a paint and coating remover from safety critical, corrosion-sensitive components of aircraft and spacecraft; (8) Industrial and commercial use as a processing aid; (9) Industrial and commercial use for plastic and rubber products manufacturing; (10) Industrial and commercial use as a solvent that becomes part of a formulation or mixture, where that formulation or mixture will be used inside a manufacturing process, and the solvent (methylene chloride) will be reclaimed; (11) Industrial and commercial use in the refinishing for wooden furniture, decorative pieces, and architectural fixtures of artistic, cultural or historic value until May 8, 2029; (12) Industrial and commercial use in adhesives and sealants in aircraft, space vehicle, and turbine applications for structural and safety critical non-structural applications until May 8, 2029; (13) Disposal; and (14) Export.
§751.113 Recordkeeping requirements.
(a) General records. Each person who manufactures (including imports), processes, or distributes in commerce any methylene chloride after August 26, 2019, must retain in one location at the headquarters of the company, or at the facility for which the records were generated beginning July 8, 2024, documentation showing:
(1) The name, address, contact, and telephone number of companies to whom methylene chloride was shipped;
(2) A copy of the notification provided under §751.111; and
(3) The amount of methylene chloride shipped.
(b) Exposure control records. Owners or operators must retain records of:
(1) The exposure control plan as described in §751.109(e)(2);
(2) Implementation of the exposure control plan described in §751.109(e)(2), including:
(i) Any regular inspections, evaluations, and updating of the exposure controls to maintain effectiveness; and
(ii) Confirmation that all persons are properly implementing the exposure controls.
(3) Personal protective equipment (PPE) and respiratory protection used by potentially exposed persons and program implementation, including fit-testing, pursuant to §751.109(f) and (g);
(4) Information and training provided pursuant to §751.109(h); and
(5) Occurrence and duration of any start-up, shutdown, or malfunction of exposure controls or of facility equipment that causes air concentrations to be above the ECEL or EPA STEL and subsequent corrective actions taken during start-up, shutdown, or malfunctions to mitigate exposures to methylene chloride.
(c) Objective data. Objective data generated during the previous 5 years, when used to forgo the initial exposure monitoring, must include:
(1) The use of methylene chloride being evaluated;
(2) The source of objective data;
(3) The measurement methods, measurement results, and measurement analysis of the use of methylene chloride; and
(4) Any other relevant data to the operations, processes, or person's exposure.
(d) Exposure monitoring records.(1) Owners or operators are required to retain monitoring records that include, at minimum, the information described at 29 CFR 1910.1052(m)(2)(ii)(A) through (F). For the purposes of this paragraph (d)(1), cross-referenced provisions in 29 CFR 1910.1052(m)(2)(ii) applying to an “employee” apply equally to potentially exposed persons and cross-referenced provisions applying to an “employer” also apply equally to owners or operators.
(2) For each monitoring event of methylene chloride required under this subpart, owners or operators must also document the following:
(i) All measurements that may be necessary to determine the conditions that may affect the monitoring results;
(ii) The identity of all other potentially exposed persons whose exposure was not measured and whose exposure is intended to be represented by the area or representative sampling monitoring;
(iii) Use of established analytical methods;
(iv) Compliance with the Good Laboratory Practice Standards in accordance with 40 CFR part 792 or use of a laboratory accredited by the AIHA or another industry-recognized program; and
(v) Information regarding air monitoring equipment including: Type, maintenance, calibrations, performance tests, limits of detection, and any malfunctions.
(3) Owners or operators must maintain copies of exposure monitoring notifications provided pursuant to §751.109(d)(5).
(e) Availability of exposure control plans. Owners or operators must document the notice to and ability of any potentially exposed persons to access the exposure control plan and other associated records in accordance with §751.109(e)(2)(iii).
(f) Records related to exemptions. To maintain eligibility for an exemption described in §751.115, the records maintained by the owners or operators must demonstrate compliance with the specific conditions of the exemption.
(g) Records related to the refinishing of wooden furniture, decorative pieces, and architectural fixtures.(1) Owners and operators of workplaces engaged in the industrial or commercial use of methylene chloride for the refinishing of wooden furniture, decorative pieces, and architectural fixtures of artistic, cultural, or historic value must document each instance of refinishing such pieces.
(2) The documentation required by paragraph (g)(1) of this section must include:
(i) The date of the refinishing activity;
(ii) A description of the wooden piece that was refinished and an explanation of its artistic, cultural, or historic value;
(iii) The name of the owner of the refinished wooden piece;
(iv) The name of the individual(s) that refinished the wooden piece;
(v) A description of the methylene chloride product used and the quantity of the product used to perform the refinishing; and
(vi) Records demonstrating compliance with the requirements of §751.117.
(h) Minimum record retention period. The records required under this section must be retained for at least 5 years from the date that such records were generated.
On April 17, 2015, the Environmental Protection Agency (EPA or the Agency) promulgated national minimum criteria for existing and new coal combustion residuals (CCR) landfills and existing and new CCR surface impoundments. On August 21, 2018, the United States Court of Appeals for the District of Columbia Circuit vacated the exemption for inactive surface impoundments at inactive facilities (legacy CCR surface impoundments) and remanded the issue back to EPA to take further action consistent with its opinion in Utility Solid Waste Activities Group, et al. v. EPA. This action responds to that order and establishes regulatory requirements for legacy CCR surface impoundments. EPA is also establishing requirements for CCR management units at active CCR facilities and at inactive CCR facilities with a legacy CCR surface impoundment. Finally, EPA is making several technical corrections to the existing regulations, such as correcting certain citations and harmonizing definitions.
DATES: This final rule is effective on November 4, 2024, published in the Federal Register May 8, 2024, page 38950.
View final rule.
The Environmental Protection Agency (EPA) is finalizing the technology reviews (TR) conducted for the national emission standards for hazardous air pollutants (NESHAP) for gasoline distribution facilities and the review of the new source performance standards (NSPS) for bulk gasoline terminals pursuant to the requirements of the Clean Air Act (CAA). The final NESHAP amendments include revised requirements for storage vessels, loading operations, and equipment to reflect cost-effective developments in practices, processes, or controls. The final NSPS reflect the best system of emission reduction for loading operations and equipment leaks. In addition, the EPA is: finalizing revisions related to emissions during periods of startup, shutdown, and malfunction (SSM); adding requirements for electronic reporting; revising monitoring and operating requirements for control devices; and making other minor technical improvements. The EPA estimates that this final action will reduce hazardous air pollutant emissions from gasoline distribution facilities by over 2,200 tons per year (tpy) and volatile organic compound (VOC) emissions by 45,400 tpy.
DATES: The final rule is effective July 8, 2024, published in the Federal Register May 8, 2024, page 39304.
View final rule.
Pursuant to the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA” or “Superfund”), the Environmental Protection Agency (EPA) is designating two per- and polyfluoroalkyl substances (PFAS)—perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS), including their salts and structural isomers—as hazardous substances. The Agency reached this decision after evaluating the available scientific and technical information about PFOA and PFOS and determining that they may present a substantial danger to the public health or welfare or the environment when released. The Agency also determined that designation is warranted based on a totality of the circumstances analysis, including an analysis of the advantages and disadvantages of designation.
DATES: Effective July 8, 2024, published in the Federal Register May 8, 2024, page 39124.
View final rule.
§302.4 Hazardous substances and reportable quantities. | ||
Note II to Table 302.4 | Revised | View text |
Table 302.4, entries ‘‘Perfluorooctanesulfonic acid, salts, & structural isomersv’’, ‘‘Perfluorooctanesulfonic acidv’’, Perfluorooctanoic acid, salts, & structural isomersv’’, and ‘‘Perfluorooctanoic acidv’’; | Added | View text |
Appendix A to §302.4—Sequential CAS Registry Number List of CERCLA Hazardous Substances | ||
Entries for “335-67-1” and “1763-23-1” | Added | View text |
New Text
§302.4 Hazardous substances and reportable quantities.
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Note II to Table 302.4
Hazardous substances are given a Statutory Code based on their statutory source. The “Statutory Code” column indicates the statutory source for designating each substance as a CERCLA hazardous substance. Statutory Code “1” indicates a Clean Water Act (CWA) Hazardous Substance [40 CFR 116.4; 33 U.S.C. 1321(b)(2)(A)]. Statutory Code “2” indicates a CWA Toxic Pollutant [40 CFR 401.15, 40 CFR part 423 Appendix A, and/or 40 CFR 131.36; 33 U.S.C. 1317(a)]. Statutory Code “3” indicates a CAA HAP [42 U.S.C. 7412(b); Pub. L. 101-549 November 15, 1990; 70 FR 75047 December 19, 2005; 69 FR 69320 November 29, 2004; 61 FR 30816 June 18, 1996; 65 FR 47342 August 2, 2000; 87 FR 393 January 5, 2022]. Statutory Code “4” indicates Resource Conservation and Recovery Act (RCRA) Hazardous Wastes [40 CFR part 261 Subpart D—Lists of Hazardous Wastes; 42 U.S.C. 6921]. (Note: The “RCRA waste No.” column provides the waste identification numbers assigned by RCRA regulations). Statutory Code “5” indicates a hazardous substance designated under section 102(a) of CERCLA. The “Final RQ [pounds (kg)]” column provides the reportable quantity for each hazardous substance in pounds and kilograms.
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This action finalizes amendments to the national emission standards for hazardous air pollutants (NESHAP) for the Coal- and Oil-Fired Electric Utility Steam Generating Units (EGUs) source category. These final amendments are the result of the EPA's review of the 2020 Residual Risk and Technology Review (RTR). The changes, which were proposed under the technology review in April 2023, include amending the filterable particulate matter (fPM) surrogate emission standard for non-mercury metal hazardous air pollutants (HAP) for existing coal-fired EGUs, the fPM emission standard compliance demonstration requirements, and the mercury (Hg) emission standard for lignite-fired EGUs. Additionally, the EPA is finalizing a change to the definition of “startup.” The EPA did not propose, and is not finalizing, any changes to the 2020 Residual Risk Review.
DATES:
This final rule is effective on July 8, 2024, published in the Federal Register May 7, 2024, page 38508.
View final rule.
In an ever-changing world, one thing that remains consistent is the need for permits. They’re required to conduct all sorts of activities, like parking in a restricted area, operating a business, and (the focus of this article) managing hazardous waste.
Permitting programs are one way the Environmental Protection Agency (EPA) ensures facilities comply with environmental statutes. The agency recently launched epa.gov/permits, a web-based platform that centralizes information about the agency’s federal environmental permit programs, including the Resource Conservation and Recovery Act (RCRA) Subtitle C Permit that’s required to treat, store, and dispose of hazardous waste.
Like EPA’s new permit platform, we want to offer a helpful starting point for navigating RCRA permit requirements. Get answers to five of the most frequently asked questions about RCRA permits.
All facilities that currently or plan to treat, store, and/or dispose of hazardous wastes (identified or listed at 40 CFR Part 261) must obtain a RCRA permit.
These treatment, storage, and disposal facilities (TSDFs) may not operate without a permit unless the facility is exempt and meets specific regulatory conditions. Generally, exempt entities include:
See 270.1 for all exceptions and exemptions.
The RCRA permit is a legally binding document that establishes the waste management activities a facility may conduct and the conditions under which it may conduct the activities. The permit lists:
RCRA permits are issued either by an EPA regional office or the state.
Authorized states implement and enforce hazardous waste management programs with standards at least as stringent as the federal rules. Note that EPA maintains its enforcement authorities over state programs. If your facility is in an authorized state that can address all provisions, apply for a state RCRA permit.
However, some states aren’t authorized to address all permit provisions, so EPA must address the unauthorized provisions. In this case, apply for a joint RCRA permit from the state and EPA.
If your facility is in an unauthorized state or territory, apply for a federal RCRA permit through the regional EPA office.
Check with your state to determine whether it’s in an authorized state and, if so, whether you need a state or joint RCRA permit. EPA lists links to state hazardous waste permit programs.
Designed to streamline the permitting process, a standardized RCRA permit reduces application requirements. The permit includes a uniform portion and may also have a supplemental portion, added at the discretion of EPA or the authorized state.
Standardized permits (regulated under Part 270 Subpart J) may be issued to TSDFs that:
The overall RCRA permit process at the federal level consists of six phases:
RCRA permits are typically effective for 10 years, but EPA can issue a permit for a shorter duration. TSDFs must receive a permit before beginning construction of a new facility. Permitted TSDFs must submit a new RCRA permit application at least six months before the current permit expires.
Remember to check state regulations for any stricter standards and differing processes.
Key to remember: Any facility that currently or plans to store, treat, or dispose of regulated hazardous waste must have a RCRA permit.
The Environmental Protection Agency (EPA or the Agency) is finalizing amendments to the procedural framework rule for conducting risk evaluations under the Toxic Substances Control Act (TSCA). The purpose of risk evaluations under TSCA is to determine whether a chemical substance presents an unreasonable risk of injury to health or the environment, without consideration of costs or non-risk factors, including unreasonable risk to potentially exposed or susceptible subpopulations identified as relevant to the risk evaluation by EPA, under the conditions of use. EPA reconsidered the procedural framework rule for conducting such risk evaluations and is revising certain aspects of that framework to better align with the statutory text and applicable court decisions, to reflect the Agency's experience implementing the risk evaluation program following enactment of the 2016 TSCA amendments, and to allow for consideration of future scientific advances in the risk evaluation process without need to further amend the Agency's procedural rule.
DATES: This final rule is effective on July 2, 2024, published in the Federal Register May 3, 2024, page 37028.
View final rule.
Subpart B—Procedures for Chemical Substance Risk Evaluations | ||
Entire subpart | Revised | View text |
New Text
Subpart B—Procedures for Chemical Substance Risk Evaluations
§702.31 General provisions.
(a) Purpose. This subpart establishes the EPA process for conducting a risk evaluation to determine whether a chemical substance presents an unreasonable risk of injury to health or the environment as required under TSCA section 6(b)(4)(B) (15 U.S.C. 2605(b)(4)(B)).
(b) Scope. These regulations establish the general procedures, key definitions, and timelines EPA will use in a risk evaluation conducted pursuant to TSCA section 6(b) (15 U.S.C. 2605(b)).
(c) Applicability. The requirements of this part apply to all chemical substance risk evaluations initiated pursuant to TSCA section 6(b) (15 U.S.C. 2605(b)) beginning June 3, 2024. For risk evaluations initiated prior to this date, but not yet finalized, EPA will seek to apply the requirements in this subpart to the extent practicable. These requirements shall not apply retroactively to risk evaluations already finalized.
(d) Categories of chemical substances. Consistent with EPA's authority to take action with respect to categories of chemicals under 15 U.S.C. 2625(c), all references in this part to “chemical” or “chemical substance” shall also apply to “a category of chemical substances.”
§702.33 Definitions.
All definitions in TSCA apply to this subpart. In addition, the following definitions apply:
Act means the Toxic Substances Control Act (TSCA), as amended (15 U.S.C. 2601 et seq.).
Aggregate exposure means the combined exposures from a chemical substance across multiple routes and across multiple pathways.
Conditions of use means the circumstances, as determined by the Administrator, under which a chemical substance is intended, known, or reasonably foreseen to be manufactured, processed, distributed in commerce, used, or disposed of.
EPA means the U.S. Environmental Protection Agency.
Pathways means the physical course a chemical substance takes from the source to the organism exposed.
Potentially exposed or susceptible subpopulation means a group of individuals within the general population identified by EPA who, due to either greater susceptibility or greater exposure, may be at greater risk than the general population of adverse health effects from exposure to a chemical substance or mixture, such as infants, children, pregnant women, workers, the elderly, or overburdened communities.
Reasonably available information means information that EPA possesses or can reasonably generate, obtain, and synthesize for use in risk evaluations, considering the deadlines specified in TSCA section 6(b)(4)(G) for completing such evaluation. Information that meets the terms of the preceding sentence is reasonably available information whether or not the information is confidential business information, that is protected from public disclosure under TSCA section 14.
Routes means the ways a chemical substance enters an organism after contact, e.g., by ingestion, inhalation, or dermal absorption.
Sentinel exposure means the exposure from a chemical substance that represents the plausible upper bound of exposure relative to all other exposures within a broad category of similar or related exposures.
Uncertainty means the imperfect knowledge or lack of precise knowledge of the real world either for specific values of interest or in the description of the system.
Variability means the inherent natural variation, diversity, and heterogeneity across time and/or space or among individuals within a population.
§702.35 Chemical substances subject to risk evaluation.
(a) Chemical substances undergoing risk evaluation. A risk evaluation for a chemical substance designated by EPA as a High-Priority Substance pursuant to the prioritization process described in subpart A or initiated at the request of a manufacturer or manufacturers under §702.45, will be conducted in accordance with this part, subject to §702.31(c).
(b) Percentage requirements. Pursuant to 15 U.S.C. 2605(b)(4)(E)(i) and in accordance with §702.45(j)(1), EPA will ensure that the number of chemical substances for which a manufacturer-requested risk evaluation is initiated pursuant to §702.45(e)(9) is not less than 25%and not more than 50% of the number of chemical substances for which a risk evaluation was initiated upon designation as a High-Priority Substance under subpart A.
(c) Manufacturer-requested risk evaluations for work plan chemical substances. Manufacturer requests for risk evaluations, described in paragraph (a) of this section, for chemical substances that are drawn from the 2014 update of the TSCA Work Plan for Chemical Assessments will be granted at the discretion of EPA. Such evaluations are not subject to the percentage requirements in paragraph (b) of this section.
§702.37 Evaluation requirements.
(a) Considerations.(1) EPA will use applicable EPA guidance when conducting risk evaluations, as appropriate and where it represents the best available science.
(2) EPA will document that the risk evaluation is consistent with the best available science and based on the weight of the scientific evidence. In determining best available science, EPA shall consider as applicable:
(i) The extent to which the scientific information, technical procedures, measures, methods, protocols, methodologies, or models employed to generate the information are reasonable for and consistent with the intended use of the information;
(ii) The extent to which the information is relevant for the Administrator's use in making a decision about a chemical substance or mixture;
(iii) The degree of clarity and completeness with which the data, assumptions, methods, quality assurance, and analyses employed to generate the information are documented;
(iv) The extent to which the variability and uncertainty in the information, or in the procedures, measures, methods, protocols, methodologies, or models, are evaluated and characterized; and
(v) The extent of independent verification or peer review of the information or of the procedures, measures, methods, protocols, methodologies or models.
(3) EPA will ensure that all supporting analyses and components of the risk evaluation are suitable for their intended purpose, and tailored to the problems and decision at hand, in order to inform the development of a technically sound determination as to whether a chemical substance presents an unreasonable risk of injury to health or the environment under the conditions of use, based on the weight of the scientific evidence.
(4) EPA will not exclude conditions of use from the scope of the risk evaluation, but a fit-for-purpose approach may result in varying types and levels of analysis and supporting information for certain conditions of use, consistent with paragraph (b) of this section. The extent to which EPA will refine its evaluations for one or more condition of use in any risk evaluation will vary as necessary to determine whether a chemical substance presents an unreasonable risk of injury to health or the environment.
(5) EPA will evaluate chemical substances that are metals or metal compounds in accordance with 15 U.S.C. 2605(b)(2)(E).
(b) Information and information sources.(1) EPA will base each risk evaluation on reasonably available information.
(2) EPA will apply systematic review methods to assess reasonably available information, as needed to carry out risk evaluations that meet the requirements in TSCA section 26(h) and (i), in a manner that is objective, unbiased, and transparent.
(3) EPA may determine that certain information gaps can be addressed through application of assumptions, uncertainty factors, models, and/or screening to conduct its analysis with respect to the chemical substance, consistent with 15 U.S.C. 2625. The approaches used will be determined by the quality of reasonably available information, the deadlines specified in TSCA section 6(b)(4)(G) for completing the risk evaluation, and the extent to which the information reduces uncertainty.
(4) EPA expects to use its authorities under the Act, and other information gathering authorities, when necessary to obtain the information needed to perform a risk evaluation for a chemical substance before initiating the risk evaluation for such substance. EPA will also use such authorities during the performance of a risk evaluation to obtain information as needed and on a case-by-case basis to ensure that EPA has adequate, reasonably available information to perform the evaluation. Where appropriate, to the extent practicable, and scientifically justified, EPA will require the development of information generated without the use of new testing on vertebrates.
(5) Among other sources of information, EPA will also consider information and advice provided by the Science Advisory Committee on Chemicals established pursuant to 15 U.S.C. 2625(o).
§702.39 Components of risk evaluation.
(a) In general. Each risk evaluation will include all of the following components:
(1) A Scope;
(2) A Hazard Assessment;
(3) An Exposure Assessment;
(4) A Risk Characterization; and
(5) A Risk Determination.
(b) Scope of the risk evaluation. The scope of the risk evaluation will include all the following:
(1) The condition(s) of use the EPA expects to consider in the risk evaluation.
(2) The potentially exposed populations, including any potentially exposed or susceptible subpopulations as identified as relevant to the risk evaluation by EPA under the conditions of use that EPA plans to evaluate.
(3) The ecological receptors that EPA plans to evaluate.
(4) The hazards to health and the environment that EPA plans to evaluate.
(5) A description of the reasonably available information and scientific approaches EPA plans to use in the risk evaluation.
(6) A conceptual model that describes the actual or predicted relationships between the chemical substance, its associated conditions of use through predicted exposure scenarios, and the identified human and environmental receptors and human and ecological health hazards.
(7) An analysis plan that includes hypotheses and descriptions about the relationships identified in the conceptual model and the approaches and strategies EPA intends to use to assess exposure and hazard effects, and to characterize risk; and a description, including quality, of the data, information, methods, and models, that EPA intends to use in the analysis and how uncertainty and variability will be characterized.
(8) EPA's plan for peer review consistent with §702.41.
(c) Hazard assessment.(1) The hazard assessment process includes the identification, evaluation, and synthesis of information to describe the potential health and environmental hazards of the chemical substance under the conditions of use.
(2) Hazard information related to potential health and environmental hazards of the chemical substance will be reviewed in a manner consistent with best available science based on the weight of scientific evidence and all assessment methods will be documented.
(3) Consistent with §702.37(b), information evaluated may include, but would not be limited to: Human epidemiological studies, in vivo and/or in vitro laboratory studies, biomonitoring and/or human clinical studies, ecological field data, read across, mechanistic and/or kinetic studies in a variety of test systems. These may include but are not limited to: toxicokinetics and toxicodynamics (e.g., physiological-based pharmacokinetic modeling), and computational toxicology (e.g., high-throughput assays, genomic response assays, data from structure-activity relationships, in silico approaches, and other health effects modeling).
(4) The hazard information relevant to the chemical substance will be evaluated for identified human and environmental receptors, including all identified potentially exposed or susceptible subpopulation(s) determined to be relevant, for the exposure scenarios relating to the conditions of use.
(5) The relationship between the dose of the chemical substance and the occurrence of health and environmental effects or outcomes will be evaluated.
(6) Hazard identification will include an evaluation of the strengths, limitations, and uncertainties associated with the reasonably available information.
(d) Exposure assessment.(1) Where relevant, the likely duration, intensity, frequency, and number of exposures under the conditions of use will be considered.
(2) Exposure information related to potential human health or ecological hazards of the chemical substance will be reviewed in a manner consistent with best available science based on the weight of scientific evidence and all assessment methods will be documented.
(3) Consistent with §702.37(b), information evaluated may include, but would not be limited to: chemical release reports, release or emission scenarios, data and information collected from monitoring or reporting, release estimation approaches and assumptions, biological monitoring data, workplace monitoring data, chemical exposure health data, industry practices with respect to occupational exposure control measures, and exposure modeling.
(4) Chemical-specific factors, including, but not limited to physical-chemical properties and environmental fate and transport parameters, will be examined.
(5) The human health exposure assessment will consider all potentially exposed or susceptible subpopulation(s) determined to be relevant.
(6) Environmental health exposure assessment will characterize and evaluate the interaction of the chemical substance with the ecological receptors and the exposures considered, including populations and communities, depending on the chemical substance and the ecological characteristic involved.
(7) EPA will describe whether sentinel exposures under the conditions of use were considered and the basis for their consideration.
(8) EPA will consider aggregate exposures to the chemical substance, and, when supported by reasonably available information, consistent with the best available science and based on the weight of scientific evidence, include an aggregate exposure assessment in the risk evaluation, or will otherwise explain in the risk evaluation the basis for not including such an assessment.
(9) EPA will assess all exposure routes and pathways relevant to the chemical substance under the conditions of use, including those that are regulated under other federal statutes.
(e) Risk characterization.(1) Requirements. To characterize the risks from the chemical substance, EPA will:
(i) Integrate the hazard and exposure assessments into quantitative and/or qualitative estimates relevant to specific risks of injury to health or the environment, including any potentially exposed or susceptible subpopulations identified, under the conditions of use;
(ii) Not consider costs or other non-risk factors; and
(iii) Describe the weight of the scientific evidence for the identified hazards and exposures.
(2) Summary of considerations. EPA will summarize, as applicable, the considerations addressed throughout the evaluation components, in carrying out the obligations under 15 U.S.C. 2625(h). This summary will include, as appropriate, a discussion of:
(i) Considerations regarding uncertainty and variability. Information about uncertainty and variability in each step of the risk evaluation (e.g., use of default assumptions, scenarios, choice of models, and information used for quantitative analysis) will be integrated into an overall characterization and/or analysis of the impact of the uncertainty and variability on estimated risks. EPA may describe the uncertainty using a qualitative assessment of the overall strength and limitations of the data and approaches used in the assessment.
(ii) Considerations of data quality. A discussion of data quality (e.g., reliability, relevance, and whether methods employed to generate the information are reasonable for and consistent with the intended use of the information), as well as assumptions used, will be included to the extent necessary. EPA also expects to include a discussion of the extent of independent verification or peer review of the information or of the procedures, measures, methods, protocols, methodologies, or models used in the risk evaluation.
(iii) Considerations of alternative interpretations. If appropriate and relevant, where alternative interpretations are plausible, a discussion of alternative interpretations of the data and analyses will be included.
(iv) Additional considerations for environmental risk. For evaluation of environmental risk, it may be necessary to discuss the nature and magnitude of the effects, the spatial and temporal patterns of the effects, implications at the individual, species, population, and community level, and the likelihood of recovery subsequent to exposure to the chemical substance.
(f) Risk determination.(1) As part of the risk evaluation, EPA will make a single determination as to whether the chemical substance presents 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, under the conditions of use.
(2) In determining whether unreasonable risk is presented, EPA's consideration of occupational exposure scenarios will take into account reasonably available information, including known and reasonably foreseen circumstances where subpopulations of workers are exposed due to the absence or ineffective use of personal protective equipment. EPA will not consider exposure reduction based on assumed use of personal protective equipment as part of the risk determination.
(3) EPA will determine whether a chemical substance does or does not present an unreasonable risk after considering the risks posed under the conditions of use and, where EPA makes a determination of unreasonable risk, EPA will identify the conditions of use that significantly contribute to such determination.
§702.41 Peer review.
EPA will conduct peer review activities on risk evaluations conducted pursuant to 15 U.S.C. 2605(b)(4)(A). EPA expects such activities, including decisions regarding the appropriate scope and type of peer review, to be consistent with the applicable peer review policies, procedures, and methods in guidance promulgated by the Office of Management and Budget and EPA, and in accordance with 15 U.S.C. 2625(h) and (i).
§702.43 Risk evaluation actions and timeframes.
(a) Draft scope.(1) For each risk evaluation to be conducted, EPA will publish a document that specifies the draft scope of the risk evaluation EPA plans to conduct and publish a notice of availability in the Federal Register. The document will address the elements in §702.39(b).
(2) EPA generally expects to publish the draft scope during the prioritization process concurrent with publication of a proposed designation as a High-Priority Substance pursuant to §702.9(g), but no later than 3 months after the initiation of the risk evaluation process for the chemical substance.
(3) EPA will allow a public comment period of no less than 45 calendar days during which interested persons may submit comment on EPA's draft scope. EPA will open a docket to facilitate receipt of public comments.
(b) Final scope.(1) EPA will, no later than 6 months after the initiation of a risk evaluation, publish a document that specifies the final scope of the risk evaluation EPA plans to conduct, and publish a notice of availability in the Federal Register. The document shall address the elements in §702.39(b).
(2) For a chemical substance designated as a High-Priority Substance under subpart A of this part, EPA will not publish the final scope of the risk evaluation until at least 12 months have elapsed from the initiation of the prioritization process for the chemical substance.
(c) Draft risk evaluation. EPA will publish a draft risk evaluation, publish a notice of availability in the Federal Register, open a docket to facilitate receipt of public comment, and provide no less than a 60-day comment period, during which time the public may submit comment on EPA's draft risk evaluation. The document shall include the elements in §702.39(c) through (f).
(d) Final risk evaluation.(1) EPA will complete and publish a final risk evaluation for the chemical substance under the conditions of use as soon as practicable, but not later than 3 years after the date on which EPA initiates the risk evaluation. The document shall include the elements in §702.39(c) through (f) and EPA will publish a notice of availability in the Federal Register.
(2) EPA may extend the deadline for a risk evaluation for not more than 6 months. The total time elapsed between initiation of the risk evaluation and completion of the risk evaluation may not exceed 3- and one-half years.
(e) Final determination of unreasonable risk. Upon determination by the EPA pursuant to §702.39(f) that a chemical substance presents an unreasonable risk of injury to health or the environment, EPA will initiate action as required pursuant to 15 U.S.C. 2605(a).
(f) Final determination of no unreasonable risk. A determination by the EPA pursuant to §702.39(f) that the chemical substance does not present an unreasonable risk of injury to health or the environment will be issued by order and considered to be a final Agency action, effective on the date of issuance of the order.
(g) Substantive revisions to scope documents and risk evaluations. The circumstances under which EPA will undertake substantive revisions to scope and risk evaluation documents are as follows:
(1) Draft documents. To the extent there are changes to a draft scope or draft risk evaluation, EPA will describe such changes in the final document.
(2) Final scope. To the extent there are changes to the scope of the risk evaluation after publication of the final scope document, EPA will describe such changes in the draft risk evaluation, or, where appropriate and prior to the issuance of a draft risk evaluation, may make relevant information publicly available in the docket and publish a notice of availability of that information in the Federal Register.
(3) Final risk evaluation. For any chemical substance for which EPA has already finalized a risk evaluation, EPA will generally not revise, supplement, or reissue a final risk evaluation without first undergoing the procedures at §702.7 to re-initiate the prioritization process for that chemical substance, except where EPA has determined it to be in the interest of protecting human health or the environment to do so, considering the statutory responsibilities and deadlines under 15 U.S.C. 2605.
(4) Process for revisions to final risk evaluations. Where EPA determines to revise or supplement a final risk evaluation pursuant to paragraph (g)(3) of this section, EPA will follow the same procedures in this section including publication of a new draft and final risk evaluation and solicitation of public comment in accordance with §§702.43(c) and (d), and peer review, as appropriate, in accordance with §702.41.
§702.45 Submission of manufacturer requests for risk evaluations.
(a) General provisions.(1) One or more manufacturers of a chemical substance may request that EPA conduct a risk evaluation on a chemical substance.
(2) Such requests must comply with all the requirements, procedures, and criteria in this section.
(3) Subject to limited exceptions in paragraph (e)(7)(iii) of this section, it is the burden of the requesting manufacturer(s) to provide EPA with the information necessary to carry out the risk evaluation.
(4) In determining whether there is sufficient information to support a manufacturer-requested risk evaluation, EPA expects to apply the same standard as it would for EPA-initiated risk evaluations, including but not limited to the considerations and requirements in §702.37.
(5) EPA may identify data needs at any time during the process described in this section, and, by submitting a request for risk evaluation under this section, the requesting manufacturer(s) agrees to provide, or develop and provide, EPA with information EPA deems necessary to carry out the risk evaluation, consistent with the provisions described in this subpart.
(6) EPA will not expedite or otherwise provide special treatment to a manufacturer-requested risk evaluation pursuant to 15 U.S.C. 2605(b)(4)(E)(ii).
(7) Once initiated in accordance with paragraph (e)(9) of this section, EPA will conduct manufacturer-requested risk evaluations following the procedures in §§702.37 through 702.43 and §§702.47 through 702.49 of this subpart.
(8) For purposes of this section, information that is “known to or reasonably ascertainable by” the requesting manufacturer(s) would include all information in the requesting manufacturer's possession or control, plus all information that a reasonable person similarly situated might be expected to possess, control, or know. Meeting this standard requires an exercise and documentation of due diligence that may vary depending on the circumstances and parties involved. At a minimum, due diligence requires:
(i) A thorough search and collection of publicly available information;
(ii) A reasonable inquiry within the requesting manufacturer's entire organization; and
(iii) A reasonably inquiry outside of the requesting manufacturer's organization, including inquiries to upstream suppliers; downstream users; and employees or other agents of the manufacturer, including persons involved in research and development, import or production, or marketing.
(9) In the event that a group of manufacturers of a chemical substance submit a request for risk evaluation under this section, the term “requesting manufacturer” in paragraphs (a), (c), and (i) of this section shall apply to all manufacturers in the group. EPA will otherwise coordinate with the primary contact named in the request for purposes of communication, payment of fees, and other actions as needed.
(b) Method for submission. All manufacturer-requested risk evaluations under this subpart must be submitted via the EPA Central Data Exchange (CDX) found at https://cdx.epa.gov.
(c) Content of request. Requests must include all of the following information:
(1) Name, mailing address, and contact information of the entity (or entities) submitting the request. If more than one manufacturer submits the request, all individual manufacturers must provide their contact information.
(2) The chemical identity of the chemical substance that is the subject of the request. At a minimum, this includes: all known names of the chemical substance, including common or trades names, CAS number, and molecular structure of the chemical substance.
(3) For requests pertaining to a category of chemical substances, an explanation of why the category is appropriate under 15 U.S.C. 2625(c). EPA will determine whether the category is appropriate for risk evaluation as part of reviewing the request in paragraph (e) of this section.
(4) A description of the circumstances under which the chemical substance is intended, known, or reasonably foreseen to be manufactured, processed, distributed in commerce, used, or disposed of, and all information known to or reasonably ascertainable by the requesting manufacturer that supports the identification of the circumstances described in this paragraph (c)(4).
(5) All information known to or reasonably ascertainable by the requesting manufacturer(s) on the health and environmental hazard(s) of the chemical substance, human and environmental exposure(s), and exposed population(s), including but not limited to:
(i) The chemical substance's exposure potential, including occupational, general population and consumer exposures, and facility release information;
(ii) The chemical substance's hazard potential, including all potential environmental and human health hazards;
(iii) The chemical substance's physical and chemical properties;
(iv) The chemical substance's fate and transport properties including persistence and bioaccumulation;
(v) Industrial and commercial locations where the chemical is used or stored;
(vi) Whether there is any storage of the chemical substance near significant sources of drinking water, including the storage facility location and the nearby drinking water source(s);
(vii) Consumer products containing the chemical;
(viii) The chemical substance's production volume or significant changes in production volume; and
(ix) Any other information relevant to the hazards, exposures and/or risks of the chemical substance.
(6) Where information described in paragraph (c)(4) or (5) of this section is unavailable, an explanation as to why, and the rationale for why, in the requester's view, the provided information is nonetheless sufficient to allow EPA to complete a risk evaluation on the chemical substance.
(7) Copies of all information referenced in paragraph (c)(5) of this section, or citations if the information is readily available from public sources.
(8) A signed certification from the requesting manufacturer(s) that all information contained in the request is accurate and complete, as follows:
I certify that to the best of my knowledge and belief:
(A) The company named in this request manufactures the chemical substance identified for risk evaluation.
(B) All information provided in the request is complete and accurate as of the date of the request.
(C) I have either identified or am submitting all information in my possession and control, and a description of all other data known to or reasonably ascertainable by me as required under this part. I am aware it is unlawful to knowingly submit incomplete, false and/or misleading information in this request and there are significant criminal penalties for such unlawful conduct, including the possibility of fine and imprisonment.
(9) Where appropriate, information that will inform EPA's determination as to whether restrictions imposed by one or more States have the potential to have a significant impact on interstate commerce or health or the environment, and that as a consequence the request is entitled to preference pursuant to 15 U.S.C. 2605(b)(4)(E)(iii).
(d) Confidential business information. Persons submitting a request under this subpart are subject to EPA confidentiality regulations at 40 CFR part 2, subpart B, and 40 CFR part 703.
(e) EPA process for reviewing requests.(1) Public notification of receipt of request. Within 15 days of receipt of a manufacturer-requested risk evaluation, EPA will notify the public that such request has been received.
(2) Initial review for completeness. EPA will determine whether the request appears to meet the requirements specified in this section (i.e., complete), or whether the request appears to not have met the requirements specified in this section (i.e., incomplete). EPA will notify the requesting manufacturer of the outcome of this initial review. For requests initially determined to be incomplete, EPA will cease review, pending actions taken by the requesting manufacturer pursuant to paragraph (f) of this section. For requests initially determined to be complete, EPA will proceed to the public notice and comment process described in paragraph (e)(3) of this section.
(3) Public notice and comment. No later than 90 days after initially determining a request to be complete pursuant to paragraph (e)(2) of this section, EPA will submit for publication the receipt of the request in the Federal Register, open a docket for that request and provide no less than a 60-day public comment period. The docket will contain the CBI sanitized copies of the request and all supporting information. The notice will encourage the public to submit comments and information relevant to the manufacturer-requested risk evaluation, including, but not limited to, identifying information not provided in the request, information the commenter believes necessary to conduct a risk evaluation, and any other information relevant to the conditions of use.
(4) Secondary review for sufficiency. Within 90 days following the end of the comment period in paragraph (e)(3) of this section, EPA will further consider whether public comments highlight deficiencies in the request not identified during EPA's initial review, and/or that the available information is not sufficient to support a reasoned evaluation. EPA will notify the requesting manufacturer of the outcome of this review. For requests determined to not be supported by sufficient information, EPA will cease review, pending actions taken pursuant to paragraph (f) of this section. For requests determined to be supported by sufficient information, EPA will proceed with request review process in accordance with paragraph (e)(5) of this section.
(5) Grant. Where EPA determines a request to be complete and sufficiently supported in accordance with paragraphs (e)(2) and (4) of this section, and subject to the percentage limitations in TSCA section 6(b)(4)(E)(i)(II), EPA will grant the request. A grant does not mean that EPA has all information necessary to complete the risk evaluation.
(6) Publication of draft conditions of use and request for information. EPA will publish a notice in the Federal Register that identifies draft conditions of use, requests relevant information from the public, and provides no less than a 60-day public comment period. Within 90 days following the close of the public comment period in this paragraph, EPA will determine whether further information is needed to carry out the risk evaluation and notify the requesting manufacturer of its determination, pursuant to paragraph (e)(7) of this section. If EPA determines at this time that no further information is necessary, EPA will initiate the risk evaluation, pursuant to paragraph (e)(9) of this section.
(7) Identification of information needs. Where additional information needs are identified, EPA will notify the requesting manufacturer and set a reasonable amount of time, as determined by EPA, for response. In response to EPA's notice, and subject to the limitations in paragraph (g) of this section, the requesting manufacturer may:
(i) Provide the necessary information. EPA will set a reasonable amount of time, as determined by EPA, for the requesting manufacturer to produce or develop and produce the information. Upon receipt of the new information, EPA will review for sufficiency and make publicly available to the extent possible, including CBI-sanitized copies of that information; or
(ii) Withdraw the risk evaluation request. Fees to be collected or refunded shall be determined pursuant to paragraph (k) of this section and 40 CFR 700.45; or
(iii) Request that EPA obtain the information using authorities under TSCA sections 4, 8 or 11. The requesting manufacturer must provide a rationale as to why the information is not reasonably ascertainable to them. EPA will review and provide notice of its determination to the requesting manufacturer. Upon receipt of the information, EPA will review the additional information for sufficiency and provide additional public notice.
(8) Unfulfilled information needs. In circumstances where there have been additional data needs identified pursuant to paragraph (e)(7) of this section that are not fulfilled, because the requesting manufacturer is unable or unwilling to fulfill those needs in a timely manner, the requesting manufacture has produced information that is insufficient as determined by EPA, or EPA determines that a request to use TSCA authorities under section 4, 8 or 11 is not warranted, EPA may deem the request to be constructively withdrawn under paragraph (e)(7)(ii) of this section.
(9) Initiation of the risk evaluation. Within 90 days of the end of the comment period provided in paragraph (e)(6) of this section, or within 90 days of EPA determining that information identified and received pursuant to paragraph (e)(7) of this section is sufficient, EPA will initiate the requested risk evaluation and follow all requirements in this subpart, including but not limited to §§702.37 through 702.43 and §§702.47 through 702.49 of this subpart, and notify the requesting manufacturer and the public. Initiation of the risk evaluation does not limit or prohibit the Agency from identifying additional data needs during the risk evaluation process.
(f) Incomplete or insufficient request. Where EPA has determined that a request is incomplete or insufficient pursuant to paragraph (e)(2) or (4) of this section, the requesting manufacturer may supplement and resubmit the request. EPA will follow the process described in paragraph (e) of this section as it would for a new request.
(g) Withdrawal of request. The requesting manufacturer may withdraw a request at any time prior to EPA's grant of such request pursuant to paragraph (e)(5) of this section, or in accordance with paragraph (e)(7) of this section and subject to payment of applicable fees. The requesting manufacturer may not withdraw a request once EPA has initiated the risk evaluation. EPA may deem a request constructively withdrawn in the event of unfulfilled information needs pursuant to paragraph (e)(8) of this section or non-payment of fees as required in 40 CFR 700.45. EPA will notify the requesting manufacturer and the public of the withdrawn request.
(h) Data needs identified post-initiation. Where EPA identifies additional data needs after the risk evaluation has been initiated, the requesting manufacturer may remedy the deficiency pursuant to paragraph (e)(7)(i) or (iii) of this section.
(i) Supplementation of original request. At any time prior to the end of the comment period described in paragraph (e)(6) of this section, the requesting manufacturer(s) may supplement the original request with any new information that becomes available to the requesting manufacturer(s). At any point prior to the completion of a manufacturer-requested risk evaluation pursuant to this section, the requesting manufacturer(s) must supplement the original request with any information that meets the criteria in 15 U.S.C. 2607(e) and this section, or with any other reasonably ascertainable information that has the potential to change EPA's risk evaluation. Such information must be submitted consistent with 15 U.S.C. 2607(e) if the information is subject to that section or otherwise within 30 days of when the requesting manufacturer(s) obtain the information.
(j) Limitations on manufacturer-requested risk evaluations.
(1) In general. EPA will initiate a risk evaluation for all requests from manufacturers for non-TSCA Work Plan Chemicals that meet the criteria in this subpart, until EPA determines that the number of manufacturer-requested chemical substances undergoing risk evaluation is equal to 25% of the High-Priority Substances identified in subpart A as undergoing risk evaluation. Once that level has been reached, EPA will initiate at least one new manufacturer-requested risk evaluation for each manufacturer-requested risk evaluation completed so long as there are sufficient requests that meet the criteria of this subpart, as needed to ensure that the number of manufacturer-requested risk evaluations is equal to at least 25% of the High-Priority substances risk evaluations and not more than 50%.
(2) Preferences. In conformance with §702.35(c), in evaluating requests for TSCA Work Plan Chemicals and requests for non-TSCA Work Plan chemicals, EPA will give preference to requests for risk evaluations on chemical substances:
(i) First, for which EPA determines that restrictions imposed by one or more States have the potential to have a significant impact on interstate commerce, health or the environment; and then
(ii) Second, based on the order in which the requests are received.
(k) Fees. Manufacturers must pay fees to support risk evaluations as specified under 15 U.S.C. 2605(b)(4)(E)(ii), and in accordance with 15 U.S.C. 2625(b) and 40 CFR 700.45. In the event that a request for a risk evaluation is withdrawn by the requesting manufacturer pursuant to paragraph (g) of this section, the total fee amount due will be either, in accordance with 40 CFR 700.45(c)(2)(x) or (xi) (as adjusted by 40 CFR 700.45(d) when applicable), 50% or 100% of the actual costs expended in carrying out the risk evaluation as of the date of receipt of the withdrawal notice. The payment amount will be determined by EPA, and invoice or refund issued to the requesting manufacturer as appropriate.
§702.47 Interagency collaboration.
During the risk evaluation process, not to preclude any additional, prior, or subsequent collaboration, EPA will consult with other relevant Federal agencies.
§702.49 Publicly available information.
For each risk evaluation, EPA will maintain a public docket at https://www.regulations.gov to provide public access to the following information, as applicable for that risk evaluation:
(a) The draft scope, final scope, draft risk evaluation, and final risk evaluation;
(b) All notices, determinations, findings, consent agreements, and orders;
(c) Any information required to be provided to EPA under 15 U.S.C. 2603;
(d) A nontechnical summary of the risk evaluation;
(e) A list of the studies, with the results of the studies, considered in carrying out each risk evaluation;
(f) Any final peer review report, including the response to peer review and public comments received during peer review;
(g) Response to public comments received on the draft scope and the draft risk evaluation; and
(h) Where unreasonable risk to workers is identified via inhalation, EPA's calculation of a risk-based occupational exposure value.
In this action, the Environmental Protection Agency (EPA) is proposing revisions to the preconstruction permitting regulations that apply to modifications at existing major stationary sources in the New Source Review (NSR) program under the Clean Air Act (CAA or Act). The proposed revisions include revising the definition of “project” in the NSR regulations, adding additional recordkeeping and reporting requirements applicable to minor modifications at existing major stationary sources, and proposing to require that decreases accounted for in the Step 1 significant emissions increase calculation be enforceable.
DATES: This proposed rule is published in the Federal Register May 3, 2024, page 36870.
View proposed rule.
Environmental reporting can be confusing, especially when it comes to terms like Tier II and TRI. I'll never forget my first job in the environmental field. I was tasked with sorting through the records of my predecessor for the upcoming reporting season. Tier II reporting seemed straightforward enough — a basic inventory of what we had on-site. Then there was TRI, which, quite frankly, looked like Tier II's evil twin at the time.
I'll forever be grateful to a senior coworker who, in an attempt to set me straight, likened Tier II reporting to a fire drill and TRI reporting to a full-blown fire inspection. The alphabet soup of acronyms started to make sense. Both reports are related to chemicals; however, they have different focuses, reporting thresholds, and target audiences.
Tier II: Informing the community
Tier II reporting falls under Section 312 of the Emergency Planning and Community Right-to-Know Act (EPCRA). It’s designed to inform local emergency responders and communities about the hazardous materials stored at a facility. This knowledge allows emergency personnel to be better prepared for potential accidents involving hazardous substances.
What to report: Tier II focuses on a broader range of hazardous materials compared to TRI. It covers flammable liquids, compressed gases, health hazards, and reactive chemicals exceeding specific threshold quantities (typically 500 pounds or 55 gallons for most chemicals).
Reporting format: Facilities are required to submit a Tier II Hazardous Chemical Inventory form by March 1 each year. It includes details about the identity, quantity, location, and hazards of each hazardous material stored on-site. Keep in mind that some states may have specific requirements for reporting and submission of the Tier II inventory form and/or the state reporting form or format.
TRI: Tracking toxic releases
The Toxics Release Inventory (TRI) Program, established under Section 313 of EPCRA, serves a different purpose. It focuses on tracking the release, use, and transfer of specific toxic chemicals listed by the Environmental Protection Agency (EPA).
What to report: TRI requires reporting on a specific list of toxic chemicals that exceed certain thresholds. These thresholds are typically 25,000 pounds for manufacturing or processing activities and 10,000 pounds for other uses. The list includes chemicals that are known or suspected to cause harm to human health or the environment.
Reporting format: Facilities that exceed the thresholds must submit a Form R by July 1 each year, which provides detailed information about the listed chemicals. It includes the quantities of the chemicals used, manufactured, processed, released (into the air, water, or land), and transferred off-site.
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.
The Environmental Protection Agency (EPA) is taking direct final action to withdraw from EPA regulation and management two designated ocean dredged material disposal sites, the Nome East and Nome West Sites (Sites), located near Nome, Alaska, pursuant to the Marine Protection, Research, and Sanctuaries Act (MPRSA), as amended. The EPA is taking this action because the United States Army Corps of Engineers (USACE) has not used the Sites for disposal of dredged material since 2009, has no plans to use the Sites for any future disposal of dredged material, and the Sites are no longer suitable for USACE's needs. This action will withdraw these sites from the regulations.
DATES: This rule is effective on August 1, 2024 published in the Federal Register May 3, 2024, page 36681.
§228.15 Dumping sites designated on a final basis. | ||
(n)(12) and (13) | Removed and reserved | View text |
The U.S. Environmental Protection Agency (EPA) is finalizing revisions to the Clean Water Act (CWA) water quality standards (WQS) regulation to add requirements for states establishing WQS in waters where Tribes hold and assert rights to CWA-protected aquatic and aquatic-dependent resources reserved through treaties, statutes, or Executive orders.
DATES: This final rule is effective on June 3, 2024, published in the Federal Register May 2, 2024, page 35717.
View final rule.
§131.3 Definitions. | ||
Paragraphs (r), (s) | Added | View text |
§131.5 EPA authority. | ||
(a)(9) | View text | |
(b) | Revised | View text |
§131.6 Minimum requirements for water quality standards submission. | ||
(g) | Added | View text |
§131.9 Protection of Tribal reserved rights. | ||
Entire section | Added | View text |
§131.20 State review and revision of water quality standards. | ||
(a) | Revised | View text |
Previous Text
§131.5 EPA authority.
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(b) If EPA determines that the State's or Tribe's water quality standards are consistent with the factors listed in paragraphs (a)(1) through (8) of this section, EPA approves the standards. EPA must disapprove the State's or Tribe's water quality standards and promulgate Federal standards under section 303(c)(4), and for Great Lakes States or Great Lakes Tribes under section 118(c)(2)(C) of the Act, if State or Tribal adopted standards are not consistent with the factors listed in paragraphs (a)(1) through (8) of this section. EPA may also promulgate a new or revised standard when necessary to meet the requirements of the Act.
§131.20 State review and revision of water quality standards.
(a) State review. The State shall from time to time, but at least once every 3 years, hold public hearings for the purpose of reviewing applicable water quality standards adopted pursuant to §§131.10 through 131.15 and Federally promulgated water quality standards and, as appropriate, modifying and adopting standards. The State shall also re-examine any waterbody segment with water quality standards that do not include the uses specified in section 101(a)(2) of the Act every 3 years to determine if any new information has become available. If such new information indicates that the uses specified in section 101(a)(2) of the Act are attainable, the State shall revise its standards accordingly. Procedures States establish for identifying and reviewing water bodies for review should be incorporated into their Continuing Planning Process. In addition, if a State does not adopt new or revised criteria for parameters for which EPA has published new or updated CWA section 304(a) criteria recommendations, then the State shall provide an explanation when it submits the results of its triennial review to the Regional Administrator consistent with CWA section 303(c)(1) and the requirements of paragraph (c) of this section.
The United States Environmental Protection Agency (EPA) is granting a treatment variance, requested by the U.S. Department of Energy (DOE) in an August 1, 2023, petition, from the Land Disposal Restrictions (LDR) treatment standards for approximately 2,000 gallons of mixed hazardous low-activity radioactive waste from DOE's Test Bed Initiative (TBI) for the Hanford Site in Washington State. The petition requested approval for DOE to treat the TBI waste to the LDR technology standard of stabilization (STABL) with verification of meeting LDR concentration-based and Toxicity Characteristic Leaching Procedure-based standards as applicable for the relevant waste codes.
DATES: This final rule is effective on May 1, 2024, published in the Federal Register May 1 2024, page 35008.
View final rule.
§268.44 Variance from a treatment standard. | ||
Paragraph (o) table; entry for “United States Department of Energy (Energy), Richland, WA” and footnotes 17 through 20 | Added | View text |
In March 2023, the U.S. Environmental Protection Agency (EPA) proposed and requested comment on the National Primary Drinking Water Regulation (NPDWR) and health-based Maximum Contaminant Level Goals (MCLGs) for six per- and polyfluoroalkyl substances (PFAS): perfluorooctanoic acid (PFOA), perfluorooctane sulfonic acid (PFOS), perfluorohexane sulfonic acid (PFHxS), perfluorononanoic acid (PFNA), hexafluoropropylene oxide dimer acid (HFPO-DA, commonly known as GenX Chemicals), and perfluorobutane sulfonic acid (PFBS). After consideration of public comment and consistent with the provisions set forth under the Safe Drinking Water Act (SDWA), the EPA is finalizing NPDWRs for these six PFAS. Through this action, the EPA is finalizing MCLGs for PFOA and PFOS at zero. Considering feasibility, the EPA is promulgating individual Maximum Contaminant Levels (MCLs) for PFOA and PFOS at 4.0 nanograms per liter (ng/L) or parts per trillion (ppt). The EPA is also finalizing individual MCLGs and is promulgating individual MCLs for PFHxS, PFNA, and HFPO-DA at 10 ng/L. In addition to the individual MCLs for PFHxS, PFNA, and HFPO-DA, in consideration of the known toxic effects, dose additive health concerns and occurrence and likely co-occurrence in drinking water of these three PFAS, as well as PFBS, the EPA is finalizing a Hazard Index (HI) of 1 (unitless) as the MCLG and MCL for any mixture containing two or more of PFHxS, PFNA, HFPO-DA, and PFBS. Once fully implemented, the EPA estimates that the rule will prevent thousands of deaths and reduce tens of thousands of serious PFAS-attributable illnesses.
DATES: This final rule is effective on June 25, 2024, published in the Federal Register April 26, 2024, page 32532.
View final rule.
Quick action using cardiopulmonary resuscitation (CPR) and automated external defibrillators(AEDs) can save the lives of the nearly 350,000 cardiac event victims each year outside of a hospital setting. But what does OSHA require for the workplace? What you didn’t know about OSHA regulations regarding AEDs may surprise you.
For every minute a patient is in cardiac arrest, their chances of survival decrease dramatically. When a patient doesn’t have a pulse and isn’t breathing, CPR should be performed until an AED is available. It’s important to note that CPR alone does not restart the heart. CPR is an oxygen circulation procedure. AEDs, on the other hand, are meant for lifesaving intervention.
CPR and early defibrillation are vital components of the emergency medical services (EMS) chain of survival that increases the odds of cardiac patient survival. However, according to the American Heart Association (AHA), even the best CPR can’t provide enough circulation of oxygen to the brain and heart for more than a few minutes. In fact, a patient whose brain is deprived of oxygen for 10 minutes or more seldom recovers.
Just like a reliable vehicle, the circulatory system is the human body’s blood transportation system, and the heart is the engine. Amazingly, the heart generates its own electrical impulses, pumping in a regular, rhythmic manner. As with any engine, the heart requires a certain amount of pressure to function and doesn’t work well when clogged with grease or debris. The most common causes of sudden cardiac arrest include a heart attack, electrocution, and asphyxiation — all of which could occur in the workplace. Common signs and symptoms include:
CPR provides the pressure for the body’s “engine” to oxygen circulating, while an AED provides the electrical impulses to keep the engine pumping.
OSHA 1910.151 requires first aid treatment be provided in the absence of an infirmary, clinic, or hospital in near proximity to the workplace used to treat injured employees. This may include assisting a victim of cardiac arrest using CPR or defibrillation.
OSHA requirements for CPR and defibrillation differ considerably. Standards requiring CPR include:
OSHA recommends basic adult CPR refresher training and retesting every year, and first aid training at least once every three years. CPR training include facilitated discussion along with ’hands-on’ skills training that uses mannequins and partner practice.
Though OSHA recognizes AEDs as important lifesaving technology that plays a role in treating cardiac arrest, the agency doesn’t currently require their use in the workplace. Instead, OSHA wants employers to assess their own requirements for AEDs as part of their first aid response.
AEDs are considered Class III medical devices which means the Food and Drug Administration (FDA) has some oversight on their use. Almost all AEDs require the purchaser to obtain a prescription from a physician under FDA regulations. The prescription process is meant as a quality control mechanism to ensure AEDs are properly maintained, that all designated responders are properly trained, and assist employers with establishing an emergency response plan for their workplace AED program.
The AHA requires AED operators to also receive CPR training as an “integral part of providing lifesaving aid to people suffering sudden cardiac arrest.” Though easy to use, each AED is slightly different, so training helps users understand the unique traits and supplies for the individual units at their workplace. Additionally, AED users must be trained to understand the signs of a sudden cardiac arrest, when to activate the EMS system, and how to perform CPR.
AEDs are light, portable, easy to use, and inexpensive. They’re best placed near high-hazard areas such as confined spaces, near electrical energy, or in remote work areas. Response time to reach AEDs should be kept within 3–5-minutes.
Need more information on defibrillators in the workplace? See our ezExplanation on AEDs. |
Many states require or encourage CPR and AED training from nationally recognized organizations. Any AED training should include CPR training. OSHA doesn’t offer first aid or CPR training, nor certify trainers. Training by a nationally recognized organization, such as AHA, the American Red Cross, or National Safety Council is recommended.
While OSHA doesn’t currently require the use of AEDs in the workplace, they do expect employers to assess their own AED requirements as part of their first aid response. AED training is required by most states and should include CPR with a hands-on practical component.
OSHA requires employers to provide all workers with immediately available and sanitary restroom or toilet facilities. But does this include truckers and delivery drivers that stop at your facilities? The sanitation standards (1910.141, 1926.51, and 1928.110) are meant to protect all workers from adverse health effects from unsanitary toilets facilities, or the unavailability of facilities when needed.
Bipartisan legislation has recently been introduced in the House that would require businesses to provide restroom access to truckers who are loading or delivering cargo at their warehouses, manufacturers, distribution centers, retailers, and ports.
Supported by leading organizations in the trucking industry, the Trucker Bathroom Access Act (H.R. 9592) was introduced on Dec. 15, 2022. The bill requires retailers, warehouses, and other establishments with existing restrooms to provide access to drivers who are loading or delivering cargo. Additionally, operators of ports and marine terminals must provide access for drayage and parking while accessing such restrooms.
This amendment to Title 49 would exempt some employers from the bill including filling and service stations, and restaurants 800-square feet or smaller with restrooms intended for employee use only. The bill doesn’t require employers to construct new restrooms but to give truck drivers the same access as employees or customers.
Commercial truckers and delivery drivers are the lifeline of our supply chain of supplies, products, and consumables. Working tirelessly all hours, during holidays and weekends, and throughout the pandemic, they continue to deliver critical food and emergency supplies to companies everywhere. Employers have the privilege of demonstrating gratitude to truckers and delivery drivers with a positive work environment.
The benefits of allowing truckers and delivery drivers the convenience and safety of readily available, sanitary restroom facilities are plenty. They’re able to rest and reset when necessary, which keeps them and others safer on the roads. Equally important, restroom availability prevents drivers from having to search for available facilities elsewhere, allowing them to keep a timely delivery schedule, limit supply chain delays, and ultimately lower costs for employers and customers.
The proposed Trucker Bathroom Access Act will require retailers, warehouses, and other establishments with existing restrooms to provide access to truckers and delivery drivers who are loading or delivering cargo. Access to restrooms keeps them refreshed and ready to deliver essential supplies to companies across the country.
The Environmental Protection Agency (EPA) is amending the Toxic Substances Control Act (TSCA) regulations for polymers manufactured under the terms of the polymer exemption by extending the submission deadline for reporting. The regulations require that manufacturers (includes importers) of polymers manufactured under the terms of the exemption submit a report of manufacture or import by January 31 of the year subsequent to initial manufacture. On June 7, 2023, EPA amended the exemption reporting requirement to require that the exemption report and accompanying confidentiality claims be submitted electronically. Because EPA experienced technical difficulties with the launch of the new electronic reporting tool, EPA is extending the reporting period for 2024 from January 31 to March 31 to allow manufacturers additional time to submit their reports and accompanying claims to EPA using the electronic reporting tool.
DATES: This final rule is effective on February 16, 2024, published in the Federal Register February 16, 2024, page 12248.
View final rule.
§723.250 Polymers. | ||
(f) introductory text | Revised | View text |
Previous Text
§723.250 Polymers.
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(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:
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Hi everyone! Welcome to the monthly news roundup video, where we’ll go over 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!
Effective January 15, OSHA penalties increased 3.2 percent for inflation. Most penalties increased to $16,131. Willful and serious violations, however, increased to $161,323.
Construction workers aged 45 and older suffer more severe injuries and higher associated costs than other age groups. Most injuries are due to slips, trips, and falls.
Washington State updated its process safety management rules to better protect workers in petroleum refineries from the hazards of volatile chemicals. The rules take effect December 27, 2024.
Bloodborne pathogens topped the list of OSHA violations for the healthcare industry in 2023. Hazard Communication was the second most cited standard, followed by respiratory protection.
OSHA Region 2 launched a regional emphasis program that targets tree trimming, tree removal, and land clearing operations. Region 2 includes New York, New Jersey, Puerto Rico, and the U.S. Virgin Islands.
EPA continues to strengthen its regulation of per- and polyfluoroalkyl — or PFAS — substances. A new rule prevents facilities from using any of the 300+ inactive PFAS before EPA conducts a risk determination and, if necessary, regulates the activity.
Thanks for tuning in to the monthly news roundup. We’ll see you next month!
The Environmental Protection Agency (EPA) is proposing a regulation to implement the requirements of the Clean Air Act (CAA) as specified in the Methane Emissions Reduction Program of the Inflation Reduction Act. This program requires the EPA to impose and collect an annual charge on methane emissions that exceed specified waste emissions thresholds from an owner or operator of an applicable facility that reports more than 25,000 metric tons of carbon dioxide equivalent of greenhouse gases emitted per year pursuant to the petroleum and natural gas systems source category requirements of the Greenhouse Gas Reporting Rule. The proposal would implement calculation procedures, flexibilities, and exemptions related to the waste emissions charge and proposes to establish confidentiality determinations for data elements included in waste emissions charge filings.
DATES: This proposed rule is published in the Federal Register January 26, 2024, page 5318.
View proposed rule.
You’ve evaluated your workplace injury risks, estimated emergency medical services (EMS) response times, and have determined you need trained first aid providers according to OSHA. But what’s considered a first aid provider — someone that’s first aid trained, or someone considered a first aid responder?
The OSHA First Aid standard (29 CFR 1910.151) requires trained first aid providers at all workplaces of any size if there is no “infirmary, clinic, or hospital in near proximity to the workplace which is used for the treatment of all injured employees.”
In addition to first aid requirements, several OSHA standards also require training in cardiopulmonary resuscitation (CPR) because sudden cardiac arrest from asphyxiation, electrocution, or exertion may occur. These standards include permit-required confined spaces; logging; diving; and electrical power generation, transmission, and distribution.
OSHA requires prompt first aid treatment for injured employees, either by providing for the availability of a trained first aid provider at the worksite, or by ensuring that emergency services are within reasonable proximity of the worksite. Whether the first aid provider is a first responder or is first aid trained is up to you and your risk assessment.
Employees considered first aid trained can provide initial treatment to an injured person until more qualified personnel arrive. First aid trained individuals can triage injuries, control the scene to keep others safe, and call for emergency services when needed. Not all first aid trained employees will feel comfortable performing CPR, using an automated external defibrillator (AED), or splinting a broken bone, however.
First responders, though similar in their role, typically have a higher degree of training than first aid trained individuals. Generally speaking, first responders are those that beat the ambulance to the scene such as firefighters or police officers. These responders can perform rescue services or escalate emergency care as needed, such as performing cardiopulmonary resuscitation (CPR) or controlling severe bleeding.
Who is more vital for handling an emergency at your facility? Both! First aid trained employees have process and facility training that first responders may not. For example, they may be more familiar with chemicals on site or process operations. Therefore, they can navigate facilities to reach injured employees quicker to begin initial treatment. First responders, on the other hand, will have a higher level of training for first aid treatment of more complicated injuries.
OSHA clarifies in a letter of interpretation (LOI) from March 23, 2007, that, “While the first aid standards do not prescribe a number of minutes, OSHA has long interpreted the term ’near proximity’ to mean that emergency care must be available within no more than 3-4 minutes from the workplace. Medical literature establishes that, for serious injuries such as those involving stopped breathing, cardiac arrest, or uncontrolled bleeding, first aid treatment must be provided within the first few minutes to avoid permanent medical impairment or death. Accordingly, in workplaces where serious accidents such as those involving falls, suffocation, electrocution, or amputation are possible, emergency medical services must be available within 3-4 minutes, if there is no employee on the site who is trained to render first aid.”
Regarding work areas, such as offices, where the possibility of such serious work-related injuries is less likely, a longer response time of up to 15 minutes may be reasonable. OSHA gives employers discretion in determining higher risk areas that may need sooner response times.
Employers choosing to rely on assistance from outside emergency responders as an alternative to providing trained responders must ascertain that emergency medical assistance will be promptly available when an injury occurs.
OSHA doesn’t offer first aid or CPR training, nor certify trainers. Training by a nationally recognized organization, such as the American Heart Association or the American Red Cross is recommended. Successful completion of any first aid training program should include instructor observation of acquired hands-on skills and written performance assessments.
OSHA 1910.151 requires employers to ensure prompt first aid treatment for injured employees, either by providing for the availability of a trained first aid provider at the worksite, or by ensuring that emergency services are within reasonable proximity of the worksite. Employers should consider the workplace, hazards, workforce, and location when determining whether to have first aid trained employees or first responders for medical aid.
The 150 air-mile exemptions, which are in the regulations at 395.1(e)(1) and (2), allow a driver to use a time record in place of a log, provided that certain conditions are met. While this is possibly the most widely used hours-of-service exemption, it may be the most commonly misused exemption, as well.
To be able to use this logging exemption in 395.1(e)(1), the driver must:
The company must retain the time record and have it available for inspection for six months.
Need more info? View our ezExplanation on the 150 air-mile exception. |
If the driver cannot meet the terms of the exemption (he or she goes too far or works too many hours), the driver must complete a regular driver’s log for the day as soon as the exemption no longer applies.
If the driver has had to complete a log 8 or fewer days out of the last 30 days, the driver can use a paper log for the day. If the driver had to complete a log more than 8 days out of the last 30 days, the driver needs to use an electronic log for the day (unless one of the ELD exemptions applies, such as operating a vehicle older than model year 2000).
When a property-carrying driver is operating under the 150 air-mile exemption, the driver is also exempt from having to take the required 30-minute break (see 395.3(a)(3)(ii)).
If the driver began the day as a 150 air-mile driver and has driven more than 8 consecutive hours without a break, and something unexpected happens and the driver can no longer use the 150 air-mile exemption, the driver must stop and immediately take the 30-minute break as well as start logging. If the driver went outside of the 150 air-mile area before the driver had 8 hours of driving without a break from driving, the driver would be expected to take the break at the appropriate time.
Here are some of the common myths and misunderstandings about the 150 air-mile exemption:
The 150 air-mile exemption at 395.1(e)(2) only applies to drivers that: Operate property-carrying vehicles that do not require a CDL to operate, and Stay within the 150 air-miles of their work reporting location.
If the driver stays within the 150 air-mile radius of the work reporting location, and returns to the work reporting location within 14 hours on 5 of the last 7 days, and 16 hours on 2 of the last seven days, the driver is allowed to use a time record in place of a log.
If the driver does not meet the terms of the exception, the driver will need to complete a log for the day. If the driver had to log more than 8 days out of the last 30 days, the driver will need to use an electronic log for the day. All of the other issues discussed above would apply to these drivers as well.
If you have drivers that use these exemptions, you will need to check time records to make sure they are complying with the appropriate time limits. You will also need to check movement records to verify that the drivers using these exemptions are staying within the mandated area (within 150 air-miles of the work reporting location for the day).
If a driver is over the hours limit, or has gone too far, you need to verify that the submitted a log for the day, either paper or electronic, depending on how many days the driver had to log out of the previous 30 days.
During an audit, if it is discovered that your drivers are using these exemptions incorrectly, you will be cited for not having drivers’ logs when required. Each day this occurred will be another violation, so the fine could be rather large if you are not managing the use of these exemptions!
When drivers fail a DOT test or engage in other prohibited drug or alcohol behavior, their commercial driving careers are stalled until specific steps in rehabilitation and treatment are completed.
Read our FAQ: What happens if a DOT return-to-duty or follow-up test is canceled? |
A commercial driver is required to go through the DOT return-to-duty process if:
Actual knowledge occurs when information is provided to the motor carrier indicating a DOT testing violation. This might be learned through:
When a motor carrier learns of a testing violation on a new hire, it must obtain proof that the driver has completed the return-to-duty process. Otherwise, the motor carrier would have to begin the return-to-duty process or pick up where it left off.
To resume a safety-sensitive function, the driver must complete the following return-to-duty steps in Subpart O of Part 40.
When drivers engage in prohibited drug or alcohol behavior, they must be immediately removed from performing all safety-sensitive functions. If on a dispatch, a driver must be told of the test result and instructed to park the vehicle. This notification often involves making arrangements to get the driver home and continue the run with different driver.
The employer must present the driver with a list of substance abuse professionals (SAPs) who have the appropriate credentials and DOT training to perform driver evaluations. The list must be given without a fee and made available to the driver (or driver applicant) whether or not the carrier retains the driver.
If the motor carrier does not have another face-to-face meeting with the driver, this list may be mailed or emailed to the driver.
For drug test results, the medical review officer (MRO) will report the violation to the Clearinghouse. This includes shy bladder scenarios without a valid medical explanation.
Failed alcohol tests (.04 or greater BAC), actual knowledge, and certain refusal to test scenarios are reported by the motor carrier to the Clearinghouse.
After the SAP list is given to a driver, the motor carrier cannot force a driver to begin the process. Nevertheless, to resume safety-sensitive functions, the driver must seek a face-to-face evaluation from a qualified SAP as a first step.
Payment of the evaluation is not required of the employer. Instead, it is based on labor-management agreements and healthcare benefits.
The SAP’s referral to an education and/or treatment program is based on a clinical evaluation of the driver during the face-to-face meeting. The SAP should have a working knowledge of what programs and counselors are available.
The SAP may take into consideration the driver’s ability to pay and insurance coverage. Once a SAP-approved provider has been agreed upon with the driver, the SAP will facilitate the referral and provide the program with the diagnostic determinations that led to the treatment plan. Programs range from outpatient treatment to partial or full in-patient resources.
Once the treatment plan has ended, the SAP will determine if it was a success. This decision is based on information provided by the education and/or treatment program and another face-to-face evaluation with the driver.
This second evaluation will result in one of three determinations:
If the SAP is satisfied with the driver’s ability to return to driving, the SAP will issue a report to the designated employer representative (DER). This report will list any continuing treatment and education, if required, and the number of DOT follow-up drug and/or alcohol tests required in a given time frame. The driver will be required to have a minimum of six unannounced follow-up tests in the first 12 months following the return to a safety-sensitive function. The SAP may require follow-up testing for up to five years.
For all Part 382 violations occurring since January 6, 2020, the SAP is required to report the successful completion of the evaluation and treatment to the Clearinghouse, provided the driver has designated the SAP in the driver’s personal Clearinghouse account.
The DER must wait for the go-ahead in the SAP report before sending the driver for the return-to-duty drug and/or alcohol test. All return-to-duty drug tests are performed under direct observation. The motor carrier must report a negative return-to-duty test to the Clearinghouse. In order for the “prohibited” status to be lifted from the driver’s record, both the SAP and motor carrier submission must be entered onto the driver’s record.
Once the Clearinghouse is no longer showing an unresolved testing violation, the driver can return to a safety-sensitive function.
Editor’s Note: Violations occurring prior to January 6, 2020, are not tracked in the Clearinghouse. Instead, the motor carrier would use the SAP report as a green light to perform the return-to-duty test, and once the negative test result is received, the driver can resume a safety-sensitive function.
After the driver returns to safety-sensitive functions, the motor carrier must carry out the unannounced follow-up tests under direct observation as prescribed in the SAP report. The DER must ensure that the tests do not have any discernible pattern.
The follow-up tests are in addition to any other DOT-required tests (e.g., random, post-accident). For instance, you cannot use a follow-up test as a substitute for a random test or vice versa.
If the driver leaves the motor carrier prior to the completion of the very last follow-up test, the next employer(s) must pick up where the process left off.
When the follow-up program is complete, the motor carrier under whose program the last test was performed must report this to the Clearinghouse. If the violation predates the Clearinghouse, the employer does not report the completed follow-up program to anyone.
If the motor carrier fails to begin or continue with a driver’s DOT return-to-duty process and follow-up testing, it is an acute violation that could cost the company up to $15,876. Allowing this driver to operate a CMV puts the carrier at risk of negligent entrustment claims if there is a crash.
The FMCSA is planning to test the effects of letting commercial truck drivers “pause” their 14-hour on-duty limit by up to 3 hours per day.
The agency is hoping to enlist up to 400 drivers to participate in its three-year “Split Duty Period Pilot Program.” Participants would be allowed to use one off-duty break of between 30 minutes and 3 hours to pause the 14-hour driving window, as long as they take 10 consecutive hours off duty at the end of the day. The pause should enable drivers to reduce fatigue, avoid congestion, reduce the pressure to speed, and be more productive, the FMCSA says.
Normally, short breaks taken during a driver’s day must be subtracted from the driver’s 14-consecutive-hour window during which driving is allowed.
For more information, see our ezExplanation on the 14-hour on-duty rule. |
Under new rules in effect on September 29, 2020, some truck drivers can pause their 14-hour limit with a break of 2 hours or more, but only if they also spend at least 7 hours in a sleeper berth (see below). Under the pilot program, drivers could pause the clock with off-duty time alone, without the need for a sleeper berth. This idea was proposed back in 2019 but didn’t find its way into the recent rule changes because the FMCSA didn’t have enough data to justify it.
As required by law, the FMCSA is gathering public input on the proposal until November 2nd. It will then decide whether to implement the program. After the program concludes, the agency will need to report to Congress on its findings before it could proceed with any changes to the hours-of-service regulations.
Participation in the pilot program would be limited to between 200 and 400 commercial driver’s license (CDL) holders from companies of all sizes, with each driver participating for up to one year. Motor carriers that want to enroll in the program will need to apply via an FMCSA website which could be available late this year. Comments on the proposal may be submitted online at www.regulations.gov under docket number FMCSA-2020-0098.
Truck drivers who fall under the federal hours-of-service rules can already pause their 14-hour clock with a short rest break, as of September 29, 2020 (see log image). This is known as the “split sleeper-berth” option, and it works like this:
Key to remember: The FMCSA plans to test the safety of allowing truck drivers to pause their 14-hour clock with a rest break of up to 3 hours, even if they don’t have a sleeper berth. The pilot program could open later this year.
As of January 1, 2023, heavy-duty trucks and buses with engines from model years 2007 to 2009 operating in California must be either:
This is the final step in the phase-in of the Truck and Bus regulation. Covered vehicles originally built with engines older than model year 2006 must have already been replaced or retrofitted.
Need more on CMV maintenance? See our ezExplanation Inspection and Maintenance. |
One issue that has come up is new vehicles are not available for delivery before January 1, 2023. This means fleets that operate in California that cannot get a replacement vehicle will be faced with the choice of either retiring their 2007 to 2009 engine vehicles without a replacement or operating in violation as of January 1, 2023.
However, the California Air Resources Board (CARB), the agency that oversees the Truck and Bus program, is aware of the situation and has provided an exemption. If the company has a written contract to purchase a new vehicle to replace a vehicle with a 2007 to 2009 engine in place before September 1, 2023, the existing vehicle can be operated until the replacement is placed in service.
To use this exemption, the company must register in CARB’s Truck Regulation Upload, Compliance, and Reporting System (TRUCRS) and report the use of the exemption. This is especially important to California-based companies as vehicle registration is tied to compliance with the Truck and Bus regulations requirements.
As of January 1, 2023, California will be placing roadside emissions monitoring devices (REMD) at locations around the state. These devices check emissions on any vehicle that passes it. If the device determines a vehicle may be a high emitter, the owner will receive a Notice to Submit to Testing. This will require the vehicle to be brought in to a “referee” location where the emissions and emissions components can be inspected.
These Truck and Bus requirements go into effect on January 1, 2023, and only apply to vehicles operating in California.
Most motor carriers review their roadside inspection reports for the obvious reasons: fixing mechanical defects and identifying unsafe or noncompliant driver behavior.
Some violations are easy to decipher, such as a burned-out light bulb or exceeding the speed limit by a specific range. Others take a little more to figure out, such as doing the math to determine when and how a driver exceeded hours-of-service (HOS) limits. Then there are all those 392.2 violations with suffixes. Some count against a carrier’s Compliance, Safety, Accountability (CSA) scores, while others do not, depending on whether they contribute to causing a crash.
One that often baffles motor carriers is 392.2C.
Section 392.2C is enforcement’s code for “failure to obey traffic control device.” The C stands for control.
The citation appears in the severity table for the Unsafe Driving BASIC (Behavior Analysis and Safety Improvement Category). The violation has been assigned a value of 5 out 10, with 10 being the most severe. The violation is used when calculating both the carrier’s and driver’s Unsafe Driving BASIC scores.
In most instances, the traffic control device is not a signal light or stop or yield sign. Rather, it is the sign that instructs the driver to pull into a weigh station.
View our Weigh Stations ezExplanation for additional information. |
The vehicles that must stop at scales and inspection locations vary from state to state and even from location to location within a state. The “weigh scale ahead” or similar sign should be the driver’s guide.
If the sign reads:
Often those who operate commercial vehicles not requiring a commercial driver’s license, such as a large pickup truck or small box truck, mistakenly believe weigh scale inspections are just for larger rigs.
If a driver goes past a weigh station without pulling in as directed by a traffic control device, enforcement will pursue and pull over the driver. The officer will then escort the driver back to the weigh station for a roadside inspection.
Even if the driver was honestly confused whether the sign applied to the vehicle, it is too late. And more than likely enforcement’s interest has been piqued. It is highly unlikely the driver will be waived through at this point, and 392.2C will be entered on the roadside inspection report.
CSA’s enforcement model suggests finding the root cause of roadside inspection violations to prevent future occurrences and ultimately improve BASIC scores.
A violation of 392.2C may have one of several root causes, such as:
Whatever the reason, it must be addressed with the driver. Corrective actions range from refresher training to termination. If the driver was trying to avoid enforcement for other reasons (drugs, alcohol, over HOS limits), these other violations need to be addressed accordingly.
Key to remember: Failing to obey a traffic control device will be used in calculation of the CSA Unsafe Driving BASIC scores. Motor carriers should address the root cause of the violation so it does not recur.
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.
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
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:
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.
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.
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:
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.
With the labor market still tight, employers might choose to hang onto employees even if they’re underperforming. 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.
Wage overpayment errors happen for many reasons — from clerical mistakes to payroll system snafus.
Regardless of the reason, employees are not necessarily entitled to keep the extra money, and employers need to know their obligations for recouping it.
Under the federal Fair Labor Standards Act (FLSA), employers don’t need an employee’s permission to recoup wage overpayments. The extra money is seen as a loan or a wage advancement to the employee.
Because of this, employers are generally free to recoup the overpayment from the next paycheck — even if such a deduction cuts into the minimum wage or overtime pay due the employee under the FLSA.
State laws, however, may have greater restrictions. For example, New York employers may only make deductions from an employee’s wages for “an overpayment of wages where such overpayment is due to a mathematical or other clerical error by the employer.”
There are also limitations on the timing and duration, frequency, and method and amount of recovery.
The bottom line is, employers should try to avoid getting themselves into an overpayment situation in the first place. Supervisors should closely review their direct reports’ timesheets to catch errors before paychecks are issued
Also, employees should be encouraged to review their pay stubs for accuracy to help catch mistakes sooner rather than later.
If a mistake happens, employers should do their due diligence to communicate with the affected employees and make a reasonable plan to recoup the funds (provided it’s allowed under state law) so as not to cause any unnecessary financial harm to employees.
Wage overpayment errors can and will occur. Employers need to know their obligations under both federal and state laws before recouping money.
Employers sometimes get tripped up on how to calculate the 1,250 hours worked eligibility criterion when employees need leave under the Family and Medical Leave Act (FMLA).
Does working overtime count toward the 1,250?
Recently, someone asked if overtime hours counted toward the 1,250 hours worked requirement (it does).
All hours actually worked apply to the 1,250, whether overtime or regular time, even if the overtime is not mandatory.
The 1,250 hours is calculated in relation to when the leave will begin, not when the employee puts an employer on notice of the need for leave.
Whether an employee is allowed to work overtime, however, is generally up to company policy. As far as pay goes, remember, if the employee is nonexempt (“hourly”) and works any overtime (mandatory or voluntary) the employee must be paid time and one-half for all hours worked over 40 within the workweek.
More about FMLA leave requirements
To be eligible to take FMLA leave, employees must:
Whether an employee has worked the minimum 1,250 hours is calculated based on determining compensable hours or work under the Fair Labor Standards Act (FLSA).
Calculating the 1,250 hours worked
When it comes to figuring out if an employee has worked at least 1,250 hours, it can get tricky. As was mentioned above, all hours worked, regular and overtime, must be counted.
Hours not worked should not be counted. The “not worked hours” include such time off as vacation time, sick leave, paid or unpaid holidays, or any other time in which an employee isn’t actually working — which can include disability, bereavement, FMLA and other forms of leave.
Once an employee meets the three eligibility criteria, including the 1,250 hours worked, for a particular leave reason, the employee remains eligible for the duration of the 12-month leave year period.
If the employee needs leave for another, different reason, eligibility would be recalculated.
Key to remember: All hours worked must be included in the 1,250 hours criterion when determining whether an employee is eligible for FMLA leave. Hours that aren’t worked (like vacation) are not included.
When an employee is on leave under the Family and Medical Leave Act (FMLA), the employer must maintain benefits under the company’s group health plan.
Thus, employees generally must continue paying their share of the health insurance premiums.
But how do employees pay their share of the premiums when FMLA leave is unpaid? Employers may offer three payment options:
Employers may allow a combination of these options, such as pre-pay for part of the leave and catch-up for the remainder. Below is a breakdown of the three available payment options.
When unpaid FMLA leave is foreseeable, employers may allow employees to pre-pay their premiums. For example, if an employee is adopting a child and requests several weeks for bonding time but does not have enough vacation to cover the entire absence, an employer could allow the employee to pre-pay his or her premiums for the portion of the leave that would be unpaid.
Employers may not require an employee to pre-pay, so this cannot be the only option offered.
If an employee chooses this option, however, employers may collect premiums on a pre-tax basis – with one exception. If the absence will extend into the next tax year (such as leave from December through January), only the premiums for the current tax year may be pre-paid with pre-tax income. The IRS does not allow employees to defer untaxed income from one year to the next.
In this example, the premiums for January could either be pre-paid with after-tax income, or the employee could elect one of the other options (pay-as-you-go or catch-up).
Under the pay-as-you-go option, employees pay their share of the premiums based upon the agreed terms made between the employer and employee. These payments are usually made on an after-tax basis.
For example, the employee might mail in a personal check every two weeks. If the employee fails to send in the checks, or otherwise fails to make payments using the agreed-upon system, the FMLA does allow employers to drop coverage after giving specified notices of non-payment.
Dropping coverage would likely cause some administrative headaches, and some insurers may refuse to do this because the employee would have to be reinstated to the health plan upon return from FMLA leave.
Therefore, employers may prefer to continue coverage by paying the employee’s share of the premiums, then use the catch-up option once the employee returns to work. Some insurance carriers recommend this as an alternative to dropping coverage.
Under the catch-up option, the employer and employee agree that the employee will not pay premiums until he or she returns from leave.
This option might be used when the need for FMLA leave was not foreseeable, such as having to care for a parent who was unexpectedly hospitalized.
To use this option, the employer and employee must agree in advance that:
When the employee returns, the employer collects the current premiums plus any catch-up payments, perhaps taking double premiums, until caught up. Contributions under the catch-up option may be taken on a pre-tax basis.
The IRS regulations indicate that, if the employee chooses the pay-as-you-go option, but fails to make the required payments, you may change to the catch-up option even without the employee’s prior agreement.
Employees on unpaid FMLA leave must still pay their share of health insurance premiums by either pre-paying, paying as they go, or making catch-up contributions upon returning to work.
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:
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.
As of January 1, California and Washington have new marijuana laws that restrict testing for the drug.
Both states, which have legalized recreational and medical use, put limits on pre-employment testing for cannabis at the start of the year.
Washington’s rationale for the new law is that a pre-employment marijuana test limits job opportunities for those who use cannabis, because an applicant will test positive for up to 30 days after using it. The new law is designed to prevent the restriction of job opportunities based on an applicant’s past cannabis use.
California’s law notes that a test for marijuana detects past use of the drug, but does not prove whether or not an individual is impaired by it. Its protections are broader than Washington’s, and apply to employees as well as applicants. As a result, they also restrict reasonable suspicion, post-accident, and random marijuana tests.
Testing restrictions in California and Washington
The new state laws take aim at tests measuring nonpsychoactive cannabis metabolites. These metabolites are created by the body after cannabis is smoked or consumed in an edible.
Their presence indicates that cannabis has been used, but the fact that they are present does not prove at a person is impaired by the drug.
The laws do not allow employers to make employment decisions based on marijuana tests that show the presence of nonspychoactive cannabis metabolites. While tests that do not detect these metabolites are technically allowed, from a practical standpoint they are difficult to find.
Current drug tests that detect the presence of THC (the chemical in marijuana causing impairment) are likely to detect nonpsychactive metabolites as well. Other tests that rely on baseline performance to prove impairment would be difficult to use for applicants, as there would be no previous information to use for comparison.
Exceptions to state laws
Both states have exceptions that allow employers to conduct marijuana tests under certain circumstances.
Washington’s restrictions do not apply to:
California’s law allows marijuana tests for:
An employee in the building and construction trades.
Applicants or employees hired for positions that require a federal government background investigation or security clearance in accordance with regulations issued by the U.S. Department of Defense or equivalent regulations applying to other agencies.
Testing conducted under state or federal laws requiring applicants or employees to be tested for controlled substances.
3 steps for employers to take
To make sure workplace drug testing in California and Washington is conducted appropriately, employers should:
Update pre-employment drug testing policies in California and Washington so they comply with the new laws.
Identify positions that are exempt from testing restrictions. When a position qualifies for an exception, make applicants aware that that marijuana testing will be conducted.
Train hiring managers and supervisors about the new requirements. Make sure they understand when marijuana testing is not allowed.
Key to remember: California and Washington have new marijuana testing restrictions that are in place as of January 1. Workplace policies and practices need to be updated to comply with the new laws.
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.
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.
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.
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.
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.
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.
The COVID-19 outbreak created a shortage of latex and nitrile gloves in many workplaces.
Latex and nitrile gloves are used extensively in health care, and their disposable (single use) nature meant that large quantities were consumed during the peak of the pandemic. The shortage was also worsened because of hoarding by some consumers. In addition, certain businesses and government agencies began using these gloves to protect employees, even if their workers didn’t normally require gloves on the job.
If you have trouble obtaining your staff’s usual gloves, be prepared to identify feasible alternatives. You don’t want to endanger them by having them wear any old gloves they find lying around.
To identify alternatives for workers who rely on latex or nitrile gloves as PPE, you must know which chemicals workers handle or come in contact with. That’s because all glove materials are not suitable for all hazards.
Evaluate which materials offer appropriate protection from the specific chemicals that workers handle to select appropriate alternative gloves.
Here’s a summary of glove types and the protection given to help evaluate alternatives.
Butyl gloves protect against a variety of chemicals such as peroxide, highly corrosive acids, strong bases, alcohols, aldehydes, ketones, esters and nitrocompounds. Butyl gloves also resist oxidation, ozone corrosion and abrasion, and remain flexible at low temperatures. However, they do not perform well with aliphatic and aromatic hydrocarbons and halogenated solvents.
Natural (latex) rubber gloves have good elasticity and temperature resistance, and resist abrasions well. They protect against most water solutions of acids, alkalis, salts, and ketones. Latex gloves may cause allergic reactions and may not be appropriate for all employees. Hypoallergenic gloves, glove liners, and powderless gloves are possible alternatives for employees who are allergic.
Neoprene gloves protect against hydraulic fluids, gasoline, alcohols, organic acids, and alkalis. Their chemical and wear resistance are generally better than gloves of natural rubber.
Nitrile gloves are intended for jobs requiring dexterity, and they stand up even after prolonged exposure to substances that cause other gloves to deteriorate. They offer protection when working with greases, oils, acids, caustics, and alcohols but are not recommended for use with strong oxidizing agents, aromatic solvents, ketones, and acetates.
Each year, the National Fire Protection Agency (NFPA) reminds employers not to prop open fire doors for convenience. Propping open doors has become a common violation of fire codes after the pandemic because workers didn’t want to become exposed to germs on common touchpoints.
I know firsthand this is an issue at construction jobsites and remember telling workers not to prop open fire doors in our clients’ facilities. Workers were doing this out of convenience because they carried things into and out of the existing facility. Propping open a fire door, or wedging it open, are serious fire and safety hazards. Keep fire doors closed to prevent smoke and fire from spreading into the fire evacuation route, like a stairwell. OSHA and NFPA don’t prohibit propping open a fire exit door but caution employers against doing this for safety and security reasons.
Fire doors must remain closed, although some may be designed to automatically close when fire and smoke are sensed by jobsite fire detection equipment. To reduce the need to disinfect frequently touched points, workers can push open fire doors using their sleeves by pushing against the push bar instead of using their hands. You can also increase housekeeping efforts and the frequency that doorknobs, handles, and push bars are cleaned throughout the shift.
One way employers try to handle skyrocketing inflation is to manage first aid supplies. But do OSHA regulations allow employers to lock first aid supplies as a way to control costs?
Our experts are often asked whether OSHA permits locking first aid supplies. In a January 23, 2007, OSHA letter of interpretation (LOI), OSHA confirmed that first aid cabinets can be locked. The LOI stated, however, that first aid supplies must be readily accessible in the event of an emergency. Additionally, 29 CFR 1910.151(b) states: “In the absence of an infirmary, clinic, or hospital in near proximity to the workplace which is used for the treatment of all injured employees, a person or persons shall be adequately trained to render first aid. Adequate first aid supplies shall be readily available.”
OSHA defines “readily available” as accessible within three to five minutes and warns that locking first aid supplies, whether kits or cabinets, may limit employee accessibility per the standard. The agency advises that if an employer was relying on first aid services not provided by a clinic, infirmary, or hospital and adequate first aid supplies were not available when needed, then the employer would be in violation of 1910.151(b).
If you’re concerned with supplies being used in a manner not intended by the company, there are ways to manage supplies. For example, employers could use vending machines that allow employees to scan their badges and get basic supplies or personal protective equipment free of charge. This can help employers manage their supply chain and evaluate by whom and for what supplies are being used.
If opting to lock your first aid supplies, remember to make supplies readily accessible (within three to five minutes). This may require that additional keys for locks be made available to multiple personnel at all times when workers are present.
Although their recommendations are non-mandatory, OSHA suggests using the American National Standards Institute (ANSI) for reference to determine what supplies you need to have. The contents for Class A kits listed in the ANSI standard should be adequate for small worksites. Class B kits are designed with a broader range and quantity of supplies to deal with injuries in more complex or high-risk environments (for example, larger operations or multiple operations conducted at the same location).
It’s important to note that although OSHA is still citing ANSI’s 1998 standard, an updated version of the standard, ANSI/International Safety Equipment Association (ISEA) Z308.1-2021, was approved on April 15, 2022, and went into effect on October 15, 2022. Major changes to the standard included:
Determining what first aid supplies should be accessible depends on the workplace hazards and potential injuries. A great place to begin is by assessing your Form 300 injury logs to see the types of injuries already reported. Most employers perform risk assessments, beginning with a review of the Form 300 logs, to drive their decisions. OSHA also provides guidance to employers in 1910.151 Appendix A.
Employers must understand the accessibility risks associated with locking first aid cabinets even though OSHA and ANSI do not prohibit this practice. First aid supplies must be readily accessible (within three to five minutes) in the event of an emergency.
Employers must select a North American Industry Classification System (NAICS) code for every establishment, which usually means a single business location. This code determines whether the establishment is exempt from keeping an OSHA 300 Log. For locations that must keep a 300 Log, the code determines whether the establishment must submit injury data to OSHA by March 2nd.
The NAICS codes get updated every five years, with 2022 as the most current. Adding confusion, different OSHA regulations use different versions of the codes. For example:
Searching codes online may default to the 2022 version, and some codes changed. For example, the 1904.41 appendix lists 4529 for “Other general merchandise stores” which covers retail outlets like dollar stores and variety stores. However, searching that code in the 2022 list shows “no result” since that number changed. The 2022 NAICS code for general merchandise stores is 4552, but that code does not appear in OSHA’s appendix. Employers using the 2022 NAICS codes may incorrectly believe their establishment is not on OSHA’s list.
Employers can search older versions of the NAICS codes at https://www.census.gov/naics/ which also indicates whether a particular code has changed in more recent versions.
In addition to using the NAICS list for the correct year, employers must choose the correct code for each establishment. If a location engages in more than one type of business activity, employers must choose only one NAICS code for OSHA recordkeeping. OSHA says to choose the code for the activity that generates the most revenue or has the most employees.
In some cases, employers can divide a single physical location into more than one “establishment” as defined in 1904.46. To split a single location into multiple establishments, all of the following must apply:
For example, OSHA noted that if an employer operates a construction company at the same physical location as a lumber yard, the employer may consider each business as a separate establishment.
For employers with multiple establishments, the NAICS code for each location should reflect the primary business activity at each establishment. For example, a manufacturing company might have a separate administration office. Using a manufacturing code for the office might not be appropriate, even though it supports the other manufacturing locations. However, NAICS codes starting 5511 for “Management of Companies and Enterprises” might apply.
For example, code 551114 gives examples as follows:
That might better describe a corporate administrative office, if the location does not have any warehousing or manufacturing operations. In fact, codes starting 5511 appear on OSHA’s list of establishments under 1904.2 that are exempt from keeping a 300 Log, so applying the correct code could mean that office doesn’t need a 300 Log at all.
Finally, counting employees gets confusing because some OSHA regulations require counting all employees in the company (combining all locations) and others require counting only the employees at each establishment.
Key to remember: NAICS codes update every five years, and employers must use the correct list, which may differ in various regulations.
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. With that said, let’s get started!
For the 13th year in a row, fall protection for construction topped OSHA’s list of violations. In fiscal year 2023, there were over 7,000 recorded violations, up from 5,250 in fiscal year 2022.
Workers who are exposed to lead in industries such as painting, battery manufacturing, and building renovation risk bringing lead home on their clothing and personal items. Take-home lead can contaminate a worker’s car and home, posing an exposure risk to family members. A new NIOSH publication outlines steps workers can take to minimize this risk.
Private industry employers reported 2.8 million nonfatal workplace injuries and illnesses in 2022. This is a 7.5 percent increase over 2021. The increase is due to a rise in both illnesses, which were up 26.1 percent, and injuries, which were up 4.5 percent. Respiratory illness cases drove the spike in reported illnesses.
OSHA faces significant challenges in ensuring worker safety, particularly in high-risk industries. This is according to a report from the Office of Inspector General, or OIG. Among OSHA’s top challenges are verifying timely hazard abatement, employer reporting, completing inspections, workplace violence, and protecting workers from crystalline silica.
And finally, turning to environmental news, a recent EPA rule requires covered facilities to include all quantities of per- and polyfluoroalkyl substances, or PFAS, on their Toxics Release Inventory reports. The rule also mandates that suppliers notify product users of the presence of any chemicals of special concern contained in their mixtures and products.
Thanks for tuning in to the monthly news roundup. We’ll see you next month!