Creating a sense of community helps improve driver recruiting, retention

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Creating a sense of community helps improve driver recruiting, retention

2022-09-19T05:00:00Z

Everyone wants to feel like they belong. Whether it’s being part of a club, team, committee, etc., that sense of connection is the lifeblood of society.

With more than 3 million truck drivers on the roads all over the U.S., creating and maintaining a sense of community is more important than ever when it comes to recruiting and retaining drivers.

Truck driver appreciation everyday

Last week the country celebrated National Truck Driver Appreciation Week. This celebration began in the 1990s when a driver recruiter, Bill Webb, realized the importance of setting aside time to show appreciation for drivers who spend countless hours alone hauling freight across the country.

While a week’s worth of appreciation is nice, carriers facing a reported shortage upwards of 80,000 drivers need to demonstrate driver appreciate every day.

Creating a sense of community

Building a sense of community — especially for new drivers — is a crucial step for carriers to connect these drivers to the company, each other, and to the customers whose products they’re delivering.

A culture of support and teamwork may help retain drivers who face loneliness or frustrations being away from family and friends.

Check-ins from fleet managers to see how they’re doing can give them the encouragement they need and remind them of the resources they have available when they come across obstacles.

Drivers, like most of the workforce today, want a work-life balance. And while the logistics of providing that might be a challenge, carriers that get creative with how to provide that for their drivers will likely be the ones to keep them longer.

Whether it’s providing information and resources about retirement, or enhancing health and wellness benefits, there are many ways for carriers to reach out and help drivers feel more connected to the company. Even something as simple as giving drivers tips on how to eat healthy on the road can help them be healthier for their families.

Where to begin

Since trucking leans heavily on cut-and-dried regulations, dabbling in gray areas that involve thoughts, feelings, health, and wellness can be scary. The best way to begin might be to access the current situation and look at what’s working and what’s not. Carriers might also want to survey their drivers to get their input on what they want and/or need.

From there, start small. Pick one or two areas to improve upon and continue to evaluate along the way. The good news is, there are many different possibilities on how to build and strengthen the sense of community. It’s an open road.

Key to remember: Creating a sense of community can help attract and retain drivers for the long haul.

Everyone wants to feel like they belong. Whether it’s being part of a club, team, committee, etc., that sense of connection is the lifeblood of society.

With more than 3 million truck drivers on the roads all over the U.S., creating and maintaining a sense of community is more important than ever when it comes to recruiting and retaining drivers.

Truck driver appreciation everyday

While a week’s worth of appreciation is nice, carriers facing a reported shortage upwards of 80,000 drivers need to demonstrate driver appreciate every day.

Creating a sense of community

A culture of support and teamwork may help retain drivers who face loneliness or frustrations being away from family and friends.

Check-ins from fleet managers to see how they’re doing can give them the encouragement they need and remind them of the resources they have available when they come across obstacles.

Where to begin

Key to remember: Creating a sense of community can help attract and retain drivers for the long haul.

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Most Recent Highlights In Environmental

2024-07-05T05:00:00Z

Expert Insights: Sharpen your skills for effective environmental investigations

I had a recent conversation with colleagues in the industry about the importance of investigating environmental incidents. We had a great exchange of tips and best practices that I couldn’t wait to share.

Preparing to respond

Let's talk about preparedness first. Before an incident occurs, make sure you're ready to respond. This means having a solid response plan and training your employees on what to do in different situations. On top of that, gather the supplies you might need. Ensure you have the supplies you may need in response to all the potential environmental incidents that could occur, including items like spill kits, overpack containers, and portable containments for releases and spills. You should also include all the tools you need for investigation and documentation.

Conducting the investigation

Now, when it comes to the actual investigation, following a set process is key. An established method ensures the process is consistent from incident to incident. Need a handy tip? Create standardized forms and a list of common questions that always require answers.

Many of our customers have the responsibility of conducting both safety and environmental incident investigations. In the world of safety, incident notification and investigation often happen after an event occurs. For example, it can be after someone is injured or has a near miss. Environmental incidents can be similar, but there's a twist: the incidents, such as spills or leaks, are often still occurring when reported. This can have implications on what your early actions look like and how quickly you need to take action.

Recordkeeping

Finally, the records you keep of what happened are crucial. It’s recommended that the investigation and recordkeeping efforts match the severity of the incident. If you have a serious incident, such as a major release, you'll probably have a bigger team investigating, including people from different departments. There should be a high level of detail with respect to documentation, pictures, and data collected. For minor incidents, perhaps something that’s fully contained or doesn’t trigger regulatory reporting, the investigation can be a smaller effort with less comprehensive records.

When it comes to environmental incidents, hoping for the best just won’t do — you must also prepare for the worst.

Have a question for our Compliance Experts?

If you have safety or compliance questions, we encourage you to use Compliance Network’s Expert Help tool. Mishka Binns and our team of Compliance Experts will respond to your question within 24 business hours.

2024-06-28T05:00:00Z

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

Heat waves disrupting factory production? Rising sea levels threatening coastal businesses? The Environmental Protection Agency (EPA) is taking concrete steps to combat climate change with the release of its 2024-2027 Climate Adaptation Plan. The plan outlines a series of actions the agency will take over the next four years to make sure it's prepared for the challenges of a changing climate.

What does the plan do?

The plan focuses on several key areas.

Building a climate-smart workforce

EPA is investing in ongoing education and training for its staff to equip them with knowledge about the future impacts of climate change, how EPA programs might be affected, and different strategies for adapting. One example is the agency-wide "Climate Conversations" webinar series, which fosters collaboration and knowledge sharing among staff.

Strengthening facility resilience

EPA is continuing to conduct facility resiliency assessments to identify areas vulnerable to climate change impacts. Based on these assessments, the agency will make recommendations for improvements to make facilities more resilient.

Building stronger supply chains

EPA is now considering climate hazards as part of its overall supply chain risk management plan. It will conduct assessments this year to identify potential disruptions and develop strategies to mitigate them.

Funding climate-ready communities

EPA is modernizing its financial assistance programs to encourage investments in communities and Tribal lands that are more resilient to climate change. The agency also launched the internal Climate-Resilient Investments Clearinghouse website to help staff integrate climate considerations into funding decisions.

Empowering informed decisions

EPA is providing communities and recipients of their financial resources with the tools, data, and technical support they need to assess their own climate risks. This empowers them to develop targeted solutions that work best for their specific situations.

Climate-proofing regulations

EPA is integrating climate change considerations into the rulemaking processes where appropriate to ensure its regulations remain effective even with a changing climate.

How does this affect industrial facilities?

Industrial facilities aren’t immune to the effects of climate change. Extreme weather events can damage infrastructure, disrupt operations, and lead to costly shutdowns. By taking steps to adapt to climate change, industrial facilities can protect their businesses, their employees, and the communities where they operate.

Facilities should be on the lookout for potential new requirements as EPA plans to integrate climate adaptation into future rulemakings. New rules could require businesses to consider future weather extremes, like stronger storms or floods. This could lead to fortifying buildings or raising critical equipment, which upfront might be costly but could prevent far more expensive damage down the line.

An example of the agency’s new commitment to include climate adaptation requirements is reflected in the final amendments of the Risk Management Plan rule. Facilities that manage hazardous materials must now develop response plans to prepare for the largest foreseeable discharges in adverse weather conditions, including more extreme weather conditions expected as the climate changes.

Key to remember: EPA released the 2024-2027 Climate Adaptation Plan, which describes agency actions to address the impacts of climate change. It incorporates climate adaptation into the agency’s programs, policies, rules, enforcement activities, and operations.

2024-06-19T05:00:00Z

Small vs. large universal waste handlers: What are the different requirements?

“To be, or not to be.” That is not the question for facilities subject to the universal waste program. “Subpart B or Subpart C of 40 CFR Part 273?” That is the question.

The Environmental Protection Agency’s (EPA’s) universal waste program simplifies management requirements for five types of federally designated hazardous wastes: batteries, pesticides, mercury-containing equipment, lamps, and non-empty aerosol cans. The program covers two categories of universal waste generators: small quantity handlers of universal waste (SQHUWs) and large quantity handlers of universal waste (LQHUWs).

Requirements differ based on the amount of universal waste a facility accumulates. Subpart B regulates SQHUWs, while Subpart C regulates LQHUWs. Determine which category applies to your facility to ensure you comply with the right universal waste requirements.

Am I a universal waste handler?

A universal waste handler either (a) generates a federally designated universal waste or (b) receives universal waste from other handlers, accumulates universal waste, and sends universal waste to:

Another universal waste handler,
A destination facility, or
A foreign destination.

It excludes transfer facilities that transport off-site universal waste by air, rail, highway, or water as well as destination facilities that treat, dispose of, or recycle universal waste. If your facility is considered a universal waste handler, you must then identify which handler category applies.

Am I a small or large universal waste handler?

The universal waste program requirements for handlers differ based on the amount of universal waste accumulated:

SQHUWs accumulate less than 5,000 kilograms of all types of universal waste at any one time.
LQHUWs accumulate 5,000 kilograms or more of all types of universal waste at any one time.

If your facility qualifies as an LQHUW during the calendar year, it keeps this status through the end of the calendar year. You can reevaluate the status in the next calendar year.

Now that you know which category applies to your facility, let’s take a look at the requirements for each kind of universal waste handler.

Small vs. large handler regulations

Many of the same rules apply to all universal waste handlers. Both SQHUWs and LQHUWs must:

Label or mark properly each universal waste or its container,
Manage universal waste in ways that prevent environmental releases of the waste or its components — though the requirements differ for small and large handlers (see table below),
Accumulate universal waste for no more than one year (unless solely for accumulating quantities of universal waste as necessary to facilitate proper recovery, treatment, or disposal),
Respond immediately to and correctly manage any environmental releases of universal waste,
Comply with export requirements for foreign shipments, and
Comply with any applicable U.S. Department of Transportation hazardous materials requirements.

However, large handlers have requirements that extend beyond those of small handlers. The table below summarizes the differences.

Differing universal waste handler requirements
	SQHUWs	LQHUWs
Waste management	See 40 CFR 273.13	See 40 CFR 273.33
Training	Issue basic waste-handling and emergency information to employees, ensuring workers know the proper procedures.	Ensure all employees are very familiar with waste-handling and emergency procedures related to their tasks during normal operations and emergencies.
Recordkeeping	Not required, but recommended	Required (Keep records of all shipments received by and sent from the facility. Maintain the records for at least three years.)
EPA Identification (ID) Number	Not required	Required
EPA notification	Not required	Required (Before meeting the 5,000-kilogram threshold to become an LQHUW, send written notification of the facility’s universal waste management activities to the regional administrator, and receive an EPA ID Number.)

Dos and don’ts for universal waste handlers

Universal waste handlers may:

Send or take universal waste to another universal waste handler, a destination facility, or a foreign destination;
Ship universal waste off-site without manifests; and
Omit counting universal waste toward a generator category (i.e., very small quantity, small quantity, or large quantity generator) under the Resource Conservation and Recovery Act.

Universal waste handlers may not:

Dispose of universal waste, or
Dilute or treat universal waste.

Check state requirements

The most important tip for all universal waste handlers is to check the state regulations.

States don’t have to cover all federally designated universal wastes, and they can impose stricter management standards (except on batteries). Wisconsin’s universal waste management program, for example, doesn’t cover aerosol cans.

On the other hand, states can add materials covered by their universal waste management programs. Texas designates paint and paint-related waste as universal waste, and California includes solar panels in its universal waste program.

Key to remember: EPA’s universal waste program requirements differ for small and large quantity handlers. Facilities determine which rules apply based on the amount of universal waste they accumulate.

2024-06-14T05:00:00Z

Keeping tabs on toxins: The TSCA Inventory gets a spring update

Have you ever wondered how many chemicals are used in everyday products in the United States? Section 8(b) of the Toxic Substances Control Act (TSCA) requires the Environmental Protection Agency (EPA) to compile, keep current, and publish a list of each chemical substance. The agency keeps track of them on a list called the TSCA Chemical Substance Inventory, commonly referred to in the industry as “the Inventory.”

EPA recently updated the Inventory in May 2024. This regular update happens twice a year for the nonconfidential portion of the Inventory. Let's dive into what the update means and why it's important.

What's the TSCA Inventory?

Imagine the Inventory as a giant catalog of chemicals. It includes all the existing chemicals manufactured, processed, or imported into the U.S. that don’t qualify for an exemption or exclusion under TSCA. This means chemicals used in things like cleaning products, clothing, toys, and medications are on this list. You can search the Inventory on EPA's website to learn more about a specific chemical.

What does it mean to be on the TSCA Inventory?

Under TSCA regulations, if a chemical is on the Inventory, the substance is considered an "existing" chemical substance in U.S. commerce. Any chemical not on the Inventory is considered a “new” chemical substance.

In addition to defining whether a specific substance is new or existing, the Inventory also flags existing chemical substances that are subject to manufacturing or use restrictions.

Determining whether a chemical is on the Inventory is a critical step before beginning to manufacture (which includes importing) a chemical substance.

What's new in the May 2024 update?

Through the update to the Inventory, EPA:

Added more chemicals. There are now 86,770 chemicals listed on the Inventory, which is a slight increase from the previous update.
Updated active and inactive substances. Out of all the listed chemicals, only 42,377 are currently used in U.S. commerce. This means the other chemicals are no longer being manufactured or imported.
Expanded commercial activity data. The update provides more details about how these chemicals are being used. Additional data helps EPA understand potential risks and how widespread certain chemicals might be.
Updated regulatory flags. The update also includes flags that indicate if there are any special regulations on a particular chemical. Regulations often apply to chemicals known to have certain safety concerns.

Why is the TSCA Inventory important?

The TSCA Inventory is a valuable tool for several reasons:

It helps EPA identify chemicals that need further safety testing or regulation. By knowing which chemicals are being used, the agency can prioritize its efforts to protect human health and the environment.
Companies that manufacture or import chemicals can use the Inventory to determine if they need to report information to the EPA. There are specific reporting requirements for certain chemicals on the list.
The Inventory is a public document, which means anyone can access it. This allows researchers, scientists, and the general public to learn more about the chemicals used in the U.S.

What's next?

EPA is constantly working to improve the Inventory. The agency is reviewing information about chemicals on the confidential portion of the list to determine whether they can be moved to the public list. This increases transparency and allows for more public oversight of chemicals used.

The next update to the Inventory is expected in early 2025. By keeping this list updated, EPA can better ensure the safety of chemicals and protect public health.

The update to the TSCA Inventory coincides with the start of the Chemical Data Reporting (CDR) cycle. The CDR program requires companies that manufacture or import certain chemicals to report information about the chemicals to EPA. The Inventory helps these companies determine which chemicals they need to report.

Key to remember: EPA published the biannual update to the TSCA Inventory, which tracks all chemicals used in the U.S., ensures safety, and informs regulations.

tsca

2024-06-14T05:00:00Z

EPA Proposed Rule: n-Methylpyrrolidone (NMP); Regulation under the Toxic Substances Control Act

The Environmental Protection Agency (EPA or the “Agency”) is proposing to address the unreasonable risk of injury to human health presented by n-methylpyrrolidone (NMP) under its conditions of use as documented in EPA's risk evaluation and risk determination for NMP pursuant to the Toxic Substances Control Act (TSCA). NMP is a widely used solvent in a variety of industrial, commercial, and consumer applications including the manufacture and production of electronics such as semiconductors, polymers, petrochemical products, paints and coatings, and paint and coating removers. EPA determined that NMP presents an unreasonable risk of injury to health due to the significant adverse health effects associated with exposure to NMP, including developmental post-implantation fetal loss from short-term exposure and reduced fertility and fecundity from long-term exposure. Additional adverse effects associated with exposure to NMP include liver toxicity, kidney toxicity, immunotoxicity, neurotoxicity, skin irritation, and sensitization. To address the identified unreasonable risk, EPA is proposing to: prohibit the manufacture (including import), processing, and distribution in commerce and use of NMP in several occupational conditions of use; require worker protections through an NMP workplace chemical protection program (WCPP) or prescriptive controls (including concentration limits) for most of the occupational conditions of use; require concentration limits on a consumer product; regulate certain consumer products to prevent commercial use; and establish recordkeeping, labeling, and downstream notification requirements.

DATES: Comments must be received on or before July 29, 2024, published in the Federal Register Jun 14, 2024, page 51134.

View proposed rule.

TSCA SMS Essential SMS Trial SMS Advanced SMS Trial Enterprise SMS Premium r40CFR751 40 CFR 751 40 CFR 751 Regulation of certain chemical substances and mixtures under section 6 of the toxic substances control act

Most Recent Highlights In Transportation

2024-06-13T05:00:00Z

EPA Final Rule: Protection of Stratospheric Ozone: Listing of Substitutes Under the Significant New Alternatives Policy Program in Commercial and Industrial Refrigeration

Pursuant to the U.S. Environmental Protection Agency’s Significant New Alternatives Policy program, this action lists several substitutes as acceptable, subject to use conditions, for retail food refrigeration, commercial ice machines, industrial process refrigeration, cold storage warehouses, and ice skating rinks. Through this action, EPA is incorporating by reference standards which establish requirements for commercial refrigerating appliances and commercial ice machines, safe use of flammable refrigerants, and safe design, construction, installation, and operation of refrigeration systems. This action also exempts propane, in the refrigerated food processing and dispensing end-use, from the prohibition under the Clean Air Act (CAA) on knowingly venting, releasing, or disposing of substitute refrigerants in the course of maintaining, servicing, repairing or disposing of an appliance or industrial process refrigeration, as the Administrator is determining, on the basis of existing evidence, that such venting, release, or disposal of this substance in this end-use does not pose a threat to the environment.

DATES: This rule is effective July 15, 2024, published in the Federal Register June 13, 2024, page 50410.

View final rule.

Clean Air Act CAA SMS Trial SMS Premium SMS Essential SMS Advanced SMS Trial Enterprise r40CFR82 40 CFR 82

2021-12-27T06:00:00Z

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

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 63

[EPA-HQ-OAR-2005-0155; FRL-8391-02-OAR]

RIN 2060-AV44

National Perchloroethylene Air Emission Standards for Dry Cleaning Facilities Technology Review

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

SUMMARY: The U.S. Environmental Protection Agency (EPA) is proposing amendments to the National Emission Standards for Hazardous Air Pollutants (NESHAP) for dry cleaning facilities using perchloroethylene (PCE) as the cleaning solvent (PCE Dry Cleaning NESHAP). The proposed amendments address the results of the technology review for the PCE Dry Cleaning NESHAP, in accordance with section 112 of the Clean Air Act (CAA). Based on the findings of the technology review, the EPA proposes to add provisions to the rule which will require all dry-to-dry machines at existing major and area sources to have both refrigerated condensers and carbon adsorbers as secondary controls.

DATES: Comments must be received on or before February 10, 2022.

Public hearing: If anyone contacts us requesting a public hearing on or before January 11, 2022, we will hold a virtual public hearing. See SUPPLEMENTARY INFORMATION for information on requesting and registering for a public hearing.

ADDRESSES: You may send comments, identified by Docket ID No. EPA-HQ-OAR-2005-0155, by any of the following methods:

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

Instructions: All submissions received must include the Docket ID No. for this rulemaking. Comments received may be posted without change to https://www.regulations.gov/, including any personal information provided. For detailed instructions on sending comments and additional information on the rulemaking process, see the SUPPLEMENTARY INFORMATION section of this document. Out of an abundance of caution for members of the public and our staff, the EPA Docket Center and Reading Room are open to the public by appointment only to reduce the risk of transmitting COVID-19. Our Docket Center staff also continues to provide remote customer service via email, phone, and webform. Hand deliveries and couriers may be received by scheduled appointment only. For further information on EPA Docket Center services and the current status, please visit us online at https://www.epa.gov/dockets.

FOR FURTHER INFORMATION CONTACT:

For questions about this proposed action, contact Brian Storey, Sector Policies and Programs Division (Mail Code D243-04), Office of Air Quality Planning and Standards, U.S. Environmental Protection Agency, Research Triangle Park, North Carolina 27711; telephone number: (919) 541-1103; fax number: (919) 541-4991; and email address: brian.storey@epa.gov.

SUPPLEMENTARY INFORMATION:

Participation in virtual public hearing. Please note that because of current Centers for Disease Control and Prevention (CDC) recommendations, as well as state and local orders for social distancing to limit the spread of COVID-19, the EPA cannot hold in-person public meetings at this time.

To request a virtual public hearing, contact the public hearing team at (888) 372-8699 or by email at SPPDpublichearing@epa.gov. If requested, the virtual hearing will be held on January 11, 2022. The hearing will convene at 9:00 a.m. Eastern Time (ET) and will conclude at 3:00 p.m. ET. The EPA may close a session 15 minutes after the last pre-registered speaker has testified if there are no additional speakers. The EPA will announce further details at https://www.epa.gov/stationary-sources-air-pollution/dry-cleaning-facilities-national-perchloroethylene-air-emission.

If a public hearing is requested, the EPA will begin pre-registering speakers for the hearing upon publication of this document in the Federal Register . To register to speak at the virtual hearing, please use the online registration form available at https://www.epa.gov/stationary-sources-air-pollution/dry-cleaning-facilities-national-perchloroethylene-air-emission or contact the public hearing team at (888) 372-8699 or by email at SPPDpublichearing@epa.gov. The last day to pre-register to speak at the hearing will be January 10, 2022. Prior to the hearing, the EPA will post a general agenda that will list pre-registered speakers in approximate order at: https://www.epa.gov/stationary-sources-air-pollution/dry-cleaning-facilities-national-perchloroethylene-air-emission.

The EPA will make every effort to follow the schedule as closely as possible on the day of the hearing; however, please plan for the hearings to run either ahead of schedule or behind schedule.

Each commenter will have 5 minutes to provide oral testimony. The EPA encourages commenters to provide the EPA with a copy of their oral testimony electronically (via email) by emailing it to brian.storey@epa.gov. The EPA also recommends submitting the text of your oral testimony as written comments to the rulemaking docket.

The EPA may ask clarifying questions during the oral presentations but will not respond to the presentations at that time. Written statements and supporting information submitted during the comment period will be considered with the same weight as oral testimony and supporting information presented at the public hearing.

Please note that any updates made to any aspect of the hearing will be posted online at https://www.epa.gov/stationary-sources-air-pollution/dry-cleaning-facilities-national-perchloroethylene-air-emission. While the EPA expects the hearing to go forward as set forth above, please monitor our website or contact the public hearing team at (888) 372-8699 or by email at SPPDpublichearing@epa.gov to determine if there are any updates. The EPA does not intend to publish a document in the Federal Register announcing updates.

If you require the services of a translator or special accommodation such as audio description, please pre-register for the hearing with the public hearing team and describe your needs by January 3, 2022. The EPA may not be able to arrange accommodations without advanced notice.

Docket. The EPA has established a docket for this rulemaking under Docket ID No. EPA-HQ-OAR-2005-0155. All documents in the docket are listed in https://www.regulations.gov/. Although listed, some information is not publicly available, e.g., Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the internet and will be publicly available only in hard copy. With the exception of such material, publicly available docket materials are available electronically in Regulations.gov .

Instructions. Direct your comments to Docket ID No. EPA-HQ-OAR-2005-0155. The EPA's policy is that all comments received will be included in the public docket without change and may be made available online at https://www.regulations.gov/, including any personal information provided, unless the comment includes information claimed to be CBI or other information whose disclosure is restricted by statute. Do not submit electronically any information that you consider to be CBI or other information whose disclosure is restricted by statute. This type of information should be submitted by mail as discussed below.

The EPA may publish any comment received to its public docket. Multimedia submissions (audio, video, etc.) must be accompanied by a written comment. The written comment is considered the official comment and should include discussion of all points you wish to make. The EPA will generally not consider comments or comment contents located outside of the primary submission ( i.e., on the Web, cloud, or other file sharing system). For additional submission methods, the full EPA public comment policy, information about CBI or multimedia submissions, and general guidance on making effective comments, please visit https://www.epa.gov/dockets/commenting-epa-dockets.

The https://www.regulations.gov/ website allows you to submit your comment anonymously, which means the EPA will not know your identity or contact information unless you provide it in the body of your comment. If you send an email comment directly to the EPA without going through https://www.regulations.gov/, your email address will be automatically captured and included as part of the comment that is placed in the public docket and made available on the internet. If you submit an electronic comment, the EPA recommends that you include your name and other contact information in the body of your comment and with any digital storage media you submit. If the EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, the EPA may not be able to consider your comment. Electronic files should not include special characters or any form of encryption and be free of any defects or viruses. For additional information about the EPA's public docket, visit the EPA Docket Center homepage at https://www.epa.gov/dockets.

Due to public health concerns related to COVID-19, the Docket Center and Reading Room are open to the public by appointment only. Our Docket Center staff also continues to provide remote customer service via email, phone, and webform. Hand deliveries or couriers will be received by scheduled appointment only. For further information and updates on EPA Docket Center services, please visit us online at https://www.epa.gov/dockets.

The EPA continues to carefully and continuously monitor information from the CDC, local area health departments, and our federal partners so that we can respond rapidly as conditions change regarding COVID-19.

Submitting CBI. Do not submit information containing CBI to the EPA through https://www.regulations.gov/ or email. Clearly mark the part or all of the information that you claim to be CBI. For CBI information on any digital storage media that you mail to the EPA, mark the outside of the digital storage media as CBI and then identify electronically within the digital storage media the specific information that is claimed as CBI. In addition to one complete version of the comments that includes information claimed as CBI, you must submit a copy of the comments that does not contain the information claimed as CBI directly to the public docket through the procedures outlined in Instructions above. If you submit any digital storage media that does not contain CBI, mark the outside of the digital storage media clearly that it does not contain CBI. Information not marked as CBI will be included in the public docket and the EPA's electronic public docket without prior notice. Information marked as CBI will not be disclosed except in accordance with procedures set forth in 40 Code of Federal Regulations (CFR) part 2. Send or deliver information identified as CBI only to the following address: OAQPS Document Control Officer (C404-02), OAQPS, U.S. Environmental Protection Agency, Research Triangle Park, North Carolina 27711, Attention Docket ID No. EPA-HQ-OAR-2005-0155. Note that written comments containing CBI and submitted by mail may be delayed and no hand deliveries will be accepted.

Preamble acronyms and abbreviations. Throughout this document wherever “we,” “us,” or “our” is used, it is intended to refer to the EPA. We use multiple acronyms and terms in this preamble. While this list may not be exhaustive, to ease the reading of this preamble and for reference purposes, the EPA defines the following terms and acronyms here:

CAA Clean Air Act

CBI Confidential Business Information

CDC Center for Disease Control

CFR Code of Federal Regulations

ECHO Enforcement and Compliance History Online

EPA Environmental Protection Agency

EJ environmental justice

FR Federal Register

GACT generally available control technology

HAP hazardous air pollutant(s)

LDAR leak detection and repair

MACT maximum achievable control technology

NAICS North American Industry Classification System

NESHAP national emission standards for hazardous air pollutants

NTTAA National Technology Transfer and Advancement Act

OAQPS Office of Air Quality Planning and Standards

OECA Office of Enforcement and Compliance Assurance

OMB Office of Management and Budget

ORCR Office of Resource Conservation and Recovery

PCE perchloroethylene

ppm parts per million

PRA Paperwork Reduction Act

RBLC RACT/BACT/LAER Clearinghouse

RCRA Resource Conservation and Recovery Act

RFA Regulatory Flexibility Act

SBA Small Business Administration

SBEAP Small Business Environmental Assistance Program

tpy tons per year

TTN Technology Transfer Network

UMRA Unfunded Mandate Reform Act

Organization of this document. The information in this preamble is organized as follows:

I. General Information

A. Does this action apply to me?

B. Where can I get a copy of this document and other related information?

II. Background

A. What is the statutory authority for this action?

B. What are these source categories and how does the current NESHAP regulate their HAP emissions?

C. What data collection activities were conducted to support this action?

D. What other relevant background information and data are available?

E. How does the EPA perform the technology review?

III. Proposed Rule Summary and Rationale

A. What are the results and proposed decisions based on our technology review, and what is the rationale for those decisions?

B. What compliance dates are we proposing, and what is the rationale for the proposed compliance dates?

IV. Summary of Cost, Environmental, and Economic Impacts

A. What are the affected sources?

B. What are the air quality impacts?

C. What are the cost impacts?

D. What are the economic impacts?

E What are the benefits?

F. What analysis of environmental justice did we conduct?

V. Request for Comments

VI. Statutory and Executive Order Reviews

A. Executive Order 12866: Regulatory Planning and Review and Executive Order 13563: Improving Regulation and Regulatory Review

B. Paperwork Reduction Act (PRA)

C. Regulatory Flexibility Act (RFA)

D. Unfunded Mandates Reform Act (UMRA)

E. Executive Order 13132: Federalism

F. Executive Order 13175: Consultation and Coordination With Indian Tribal Governments

G. Executive Order 13045: Protection of Children From Environmental Health Risks and Safety Risks

H. Executive Order 13211: Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use

I. National Technology Transfer and Advancement Act (NTTAA)

J. Executive Order 12898: Federal Actions To Address Environmental Justice in Minority Populations and Low-Income Populations

I. General Information

A. Does this action apply to me?

The standards in 40 CFR part 63, subpart M, apply to industrial and commercial dry cleaning facilities that use PCE. The North American Industry Classification System (NAICS) codes applicable to 40 CFR part 63, subpart M, are 812310 (coin-operated laundries and dry cleaners), 812320 (dry cleaning and laundry services other than coin-operated services), and 812332 (industrial launderers). This list of categories and NAICS codes is not intended to be exhaustive, but rather provides a guide for readers regarding the entities that this proposed action are likely to affect.

As defined in the Initial List of Categories of Sources Under Section 112(c)(1) of the Clean Air Act Amendments of 1990 (see 57 FR 31576, July 16, 1992) and Documentation for Developing the Initial Source Category List, Final Report ( see EPA-450/3-91-030, July 1992), the PCE dry cleaning source categories include any facility engaged in cleaning soiled apparel, leather, and other fine goods. These are usually small independently operated neighborhood shops, franchise shops, and small specialty shops. The source categories only include facilities that use PCE as a cleaning agent.

Federal, state, local, and tribal government entities would not be affected by this proposed action.

B. Where can I get a copy of this document and other related information?

In addition to being available in the docket, an electronic copy of this action is available on the internet. Following signature by the EPA Administrator, the EPA will post a copy of this proposed action at https://www.epa.gov/dry-cleaning-facilities-national-perchloroethylene-air-emission. Following publication in the Federal Register, the EPA will post the Federal Register version of the proposal and key technical documents at this same website.

A redline version of the regulatory language that incorporates the proposed changes is available in the docket for this action (Docket ID No. EPA-HQ-OAR-2005-0155).

II. Background

A. What is the statutory authority for this action?

The statutory authority for this action is provided by sections 112 and 301 of the Clean Air Act (CAA), as amended (42 U.S.C. 7401 et seq. ). Section 112 of the CAA establishes a two-stage regulatory process to develop standards for emissions of hazardous air pollutants (HAP) from stationary sources. Generally, the first stage involves establishing technology-based standards and the second stage involves evaluating those standards that are based on maximum achievable control technology (MACT) to determine whether additional standards are needed to address any remaining risk associated with HAP emissions. This second stage is commonly referred to as the “residual risk review.” In addition to the residual risk review, the CAA also requires the EPA to review MACT and generally available control technology (GACT) standards set under CAA section 112 every 8 years and revise the standards as necessary taking into account developments in practices, processes, or control technologies. This review is commonly referred to as the “technology review,” and is the subject of this proposal. The discussion that follows identifies the most relevant statutory sections and briefly explains the contours of the methodology used to implement these statutory requirements. A more comprehensive discussion appears in the document titled CAA Section 112 Risk and Technology Reviews: Statutory Authority and Methodology, in the docket for this rulemaking.

In the first stage of the CAA section 112 standard setting process, the EPA promulgates technology-based standards under CAA section 112(d) for categories of sources identified as emitting one or more of the HAP listed in CAA section 112(b). Sources of HAP emissions are either major sources or area sources, and CAA section 112 establishes different requirements for major source standards and area source standards. “Major sources” are those that emit or have the potential to emit 10 tons per year (tpy) or more of a single HAP or 25 tpy or more of any combination of HAP. All other sources are “area sources.” For major sources, CAA section 112(d)(2) provides that the technology-based NESHAP must reflect the maximum degree of emission reductions of HAP achievable (after considering cost, energy requirements, and non-air quality health and environmental impacts). These standards are commonly referred to as MACT standards. CAA section 112(d)(3) also establishes a minimum control level for MACT standards, known as the MACT “floor.” In certain instances, as provided in CAA section 112(h), the EPA may set work practice standards in lieu of numerical emission standards. The EPA must also consider control options that are more stringent than the floor. Standards more stringent than the floor are commonly referred to as “beyond-the-floor” standards. For area sources, CAA section 112(d)(5) allows the EPA to set standards based on GACT standards in lieu of MACT standards. For categories of major sources and any area source categories subject to MACT standards, the second stage in standard-setting focuses on identifying and addressing any remaining ( i.e., “residual”) risk pursuant to CAA section 112(f) and concurrently conducting a technology review pursuant to CAA section 112(d)(6). For categories of area sources subject to GACT standards, there is no requirement to address residual risk, but, similar to the major source categories, the technology review is required.

CAA section 112(d)(6) requires the EPA to review standards promulgated under CAA section 112 and revise them “as necessary (taking into account developments in practices, processes, and control technologies)” no less often than every 8 years. In conducting this review, which we call the “technology review,” the EPA is not required to recalculate the MACT floors that were established in earlier rulemakings. Natural Resources Defense Council (NRDC) v. EPA, 529 F.3d 1077, 1084 (D.C. Cir. 2008). Association of Battery Recyclers, Inc. v. EPA, 716 F.3d 667 (D.C. Cir. 2013). The EPA may consider cost in deciding whether to revise the standards pursuant to CAA section 112(d)(6). The EPA is required to address regulatory gaps, such as missing standards for listed air toxics known to be emitted from the source category, and any new MACT standards must be established under CAA sections 112(d)(2) and (3), or, in specific circumstances, CAA sections 112(d)(4) or (h). Louisiana Environmental Action Network (LEAN) v. EPA, 955 F.3d 1088 (D.C. Cir. 2020).

B. What are these source categories and how does the current NESHAP regulate their HAP emissions?

The PCE Dry Cleaning NESHAP was originally promulgated September 22, 1993 (58 FR 49376) as 40 CFR part 63, subpart M. Significant amendments were promulgated on June 3, 1996 (61 FR 27788), December 14, 1999 (64 FR 69643), July 27, 2006 (71 FR 42743), and July 11, 2008 (73 FR 39871). The PCE Dry Cleaning NESHAP includes MACT standards which apply to major sources, and GACT standards which apply to area sources of dry cleaning that use the chemical PCE. The PCE Dry Cleaning NESHAP regulates PCE emitted from the dry cleaning process.

Dry cleaning is any cleaning process for clothing and other garments using a solvent other than water. PCE, also known as perc, tetrachloroethene, or tetrachloroethylene has been, historically, the most widely used liquid solvent in dry cleaning. Dry cleaning facilities may provide dry cleaning and laundering services at the location, or the facility may be a drop-off only location that transports the garments to a separate location where the cleaning is performed. Establishments may also offer specialty cleaning services for garments and textiles such as fur, leather, suede, wedding gowns, draperies, and pillows.

PCE dry cleaning machines are classified into two types: Transfer and dry-to-dry. Similar to residential washing machines and dryers, transfer machines include a unit for washing and another unit for drying. Following the wash cycle, PCE-containing articles are manually transferred from the washer to the dryer. The transfer of wet fabrics is the predominant source of PCE emissions in these systems. Transfer machines are prohibited at all existing and new major and area sources due to the NESHAP's requirement that dry cleaning systems eliminate any emissions of PCE while transferring articles between the washer and the dryer or reclaimer. Therefore, transfer machines are no longer sold, and none are known to still be in operation as these machines have reached the end of their useful lives and should have been replaced by dry-to-dry machines. Dry-to-dry machines wash, extract, and dry the articles in a single machine. The articles enter and exit the machine dry. Because the transfer step is eliminated, dry-to-dry machines have much lower emissions than transfer machines.

“Fourth generation” dry-to-dry machines were introduced in the early 1990s. A fourth generation dry-to-dry machine is a closed-loop system that uses a refrigerated condenser(s) to recycle PCE from the wash cycle, and a carbon adsorption unit(s) to filter PCE from the drum at the end of the dry cycle. The refrigerated condenser is a vapor recovery system into which an air-PCE gas-vapor stream is routed and the PCE is condensed by cooling the gas-vapor stream. The air remaining in the machine at the end of the dry cleaning cycle then passes through a carbon adsorber prior to opening the machine door. The carbon adsorber is a bed of activated carbon into which the air-PCE gas-vapor stream is routed and PCE is adsorbed on the carbon. The use of the carbon adsorber in combination with the refrigerated condenser offers greater emissions reductions over a dry-to-dry machine equipped with only a refrigerated condenser because it reduces the PCE concentration in the air remaining in the machine once the dry cleaning cycle is complete instead of allowing those vapors to be vented or released at the end of the dry cleaning cycle.

The latest generation machines, or “fifth generation” machines were introduced in the late 1990s. They have the same control technology as fourth generation machines, but they are also equipped with an inductive fan, internal solvent vapor monitoring devices (sensor), and interlock (lockout) devices that will not allow access to the machine until solvent vapor concentrations are below 300 ppm. The lockout feature ensures that the PCE set-point has been attained before the machine door can be opened, but it does not remove additional PCE.

Per 40 CFR 63.320, a dry cleaning facility is a major source if the facility emits or has the potential to emit more than 10 tons per year of PCE to the atmosphere. A dry cleaning facility is considered an area source if it does not meet the criteria for major sources, as specified in 40 CFR 63.320. However, in lieu of measuring or determining a facility's potential to emit PCE emissions, a dry cleaning facility is a major source if: (1) It includes only dry-to-dry machine(s) and has a total yearly PCE consumption greater than 2,100 gallons as determined according to 40 CFR 63.323(d); or (2) it includes only transfer machine system(s) or both dry-to-dry machine(s) and transfer machine system(s) and has a total yearly PCE consumption greater than 1,800 gallons as determined according to 40 CFR 63.323(d).

As defined by the initial list of source categories publish on July 16, 1992 (57 FR 31576), the PCE Dry Cleaning NESHAP applies to the following major and area sources of HAP emissions:

Major Source Categories

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

Area Source Categories

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

In general, the PCE Dry Cleaning NESHAP affects three types of dry cleaners that use PCE: Commercial, industrial, and co-residential. Commercial facilities clean household items such as suits, dresses, coats, pants, comforters, curtains, leather clothing, and formal wear. Industrial dry cleaners clean heavily stained articles such as work gloves, uniforms, mechanics' overalls, mops, and shop rags. Co-residential facilities are usually a subset of commercial operations and include dry cleaning operations located in buildings in which people reside. Co-residential facilities are generally found in urban areas where commercial and residential occupancy occur in a single building.

The PCE Dry Cleaning NESHAP identifies all major sources as “large” industrial and commercial dry cleaners. These dry cleaners are subject to MACT standards under this NESHAP. It is estimated that there are five or fewer of these major source dry cleaners remaining in the United States. ¹ The PCE Dry Cleaning NESHAP requires new major source PCE dry cleaners operating dry-to-dry machines to:

¹ Estimated quantity of major source PCE dry cleaners is based on details provided to EPA by state regulators, state small business environmental assistance providers' programs (SBEAP) personnel, and industry trade association representatives. Refer to the docket for this proposed rule (Docket ID No. EPA-HQ-OAR-2005-0155).

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

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

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

Dry cleaners that are commonly found in community settings ( e.g., shopping centers and strip malls) are typically “area sources,” meaning they emit less than 10 tons of PCE each year, and are smaller in size in comparison to major source industrial and commercial PCE dry cleaners. The PCE Dry Cleaning NESHAP standards for these area sources are GACT standards. The PCE Dry Cleaning NESHAP requires existing area source PCE dry cleaners operating dry-to-dry machines to:

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

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

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

The 2006 amendments to the PCE Dry Cleaning NESHAP eliminated the use of PCE by dry cleaners in co-residential buildings ( e.g., a dry cleaner found on the ground floor of an apartment building). EPA recognized that because co-residential dry cleaners are located very close to residences, residents' exposures and their cancer risks could be much higher than for typical area source dry cleaners. As such, the PCE Dry Cleaning NESHAP includes requirements to eliminate risks associated with PCE emissions from co-residential dry cleaners. Under 40 CFR 63.322(o)(5)(i), owners/operators were required to eliminate any PCE emissions from systems located in residential buildings by December 21, 2020. These dry cleaner owner/operators were allowed to replace PCE machines with newer available non-PCE technology. This sunset date allowed owners of existing co-residential sources to operate their machines for their maximum estimated useful life, 15 years, assuming they were first installed no later than December 21, 2005. Additionally, under 40 CFR 63.320(b)(2)(ii) and 63.322(o)(5)(ii), any PCE dry cleaning machines in co-residential buildings that began operating between December 21, 2005 and July 13, 2006, were required to install equipment to aggressively control PCE emissions ( i.e., refrigerated condensers, carbon adsorbers, and vapor barriers), and to conduct weekly inspections to detect PCE leaks, repair the leaks, and maintain records, before eliminating PCE emissions by July 27, 2009.

Petitions for judicial review of the 2006 amendments to the NESHAP were filed by the Sierra Club, Halogenated Solvents Industry, Neighborhood Cleaners Association, International Fabricare Institute, and Textile Care Allied Trades Association. Sierra Club et al. v. USEPA, No. 06-1330 (and consolidated cases) (D.C. Cir.). Petitioners questioned: Whether the EPA reasonably interpreted CAA section 112(d)(6) to allow consideration of risk and costs as factors in determining the extent to which it was necessary to revise standards regulating PCE; whether EPA reasonably determined under section 112(d)(6) that it was necessary to revise standards regulating PCE, and to require elimination of PCE emissions at co-residential systems but not at other systems; whether the EPA had complied with the Regulatory Flexibility Act (RFA); and whether EPA had reasonably denied a petition for reconsideration of the rule submitted by the Sierra Club. Although the case was fully briefed, in 2009 before it could be argued at the D.C. Circuit, the parties agreed to EPA taking a voluntary remand of the rule in order for the then-new administration to consider whether further administrative action was warranted regarding the challenged issues, while leaving the rule in force. As discussed in section III.A of this preamble, we are proposing our response to the voluntary remand as part of this proposal.

C. What data collection activities were conducted to support this action?

For this technology review, the EPA investigated developments in practices, processes, and control technologies through communications and direct discussions with state agencies (including regional, state, and local regulators), Small Business Environmental Assistance Program (SBEAP) personnel, industry stakeholders, and trade association representatives. Details of these conversations are included in the memorandum titled Technology Review for the PCE Dry Cleaning NESHAP, December 2021, available in the docket for this action (Docket ID No. EPA-HQ-OAR-2005-0155).

We performed a search of the EPA's Technology Transfer Network (TTN) Clean Air Technology Center—RACT/BACT/LAER Clearinghouse (RBLC) database. The RBLC provides several options for searching the permit database on-line to locate applicable control technologies. We searched the RBLC database for specific dry cleaning process types (“49.002—Dry Cleaning, PERC/Chlorinated Solvents” and “49.003—Dry Cleaning, Petroleum Solvents”). In querying results dating back to January 1, 2000, no results were returned when searching for Process Type 49.002 and three results were returned for Process Type 49.003, however none of the information returned was more recent than 2005 or included any new or improved control technologies. In addition to searches conducted using the process type codes above, the RBLC was queried for any sources with “cleaning”, “cleaners”, or “dry cleaning” in their name. The NAICS and SIC codes for dry cleaners, 812320 and 7216, respectively, were also used to search the RBLC. None of these searches returned relevant information on new or improved control technologies used in dry cleaning facilities. Full details of the RBLC database search in support of this technology review are included in the memorandum titled Technology Review for the PCE Dry Cleaning NESHAP, December 2021, available in the docket for this action (Docket ID No. EPA-HQ-OAR-2005-0155).

The EPA also reviewed information and details for facilities that are subject to the PCE Dry Cleaning NESHAP using the Agency's Enforcement and Compliance History Online (ECHO) database. The ECHO database provides integrated compliance and enforcement information for approximately 800,000 regulated facilities nationwide. Using the features in the ECHO database, we searched for dry cleaning facilities by NAICS. The database identified approximately 7,900 facilities. However, these data are not likely to be comprehensive for the dry cleaning source category because not all states submit data on smaller sources to ECHO. Details of the ECHO database search in support of this technology review are included in the memorandum titled Technology Review for the PCE Dry Cleaning NESHAP, December 2021, available in the docket for this action (Docket ID No. EPA-HQ-OAR-2005-0155).

D. What other relevant background information and data are available?

To supplement the information collected from the ECHO search, the EPA collected information from the EPA's Office of Resource Conservation and Recovery (ORCR) hazardous waste generator databases. ORCR is responsible for implementation and oversight of the hazardous waste program required by subtitle C of the Resource Conservation and Recovery Act (RCRA). As part of the hazardous waste program, hazardous waste generators must report hazardous waste quantities about a specified threshold, as required by RCRA, subtitle C. Active PCE dry cleaning facilities were identified in the ORCR hazardous waste generator databases, based on a search of reported PCE waste generation, and the NAICS for dry cleaning. Approximately 9,000 active hazardous waste generators were identified in the database. This list does not represent the full list of dry cleaning facilities or indicate the number of facilities subject to the PCE Dry Cleaning NESHAP. For many area sources in this source category the amount of PCE waste generated is below the threshold to notify or report under the RCRA regulations, therefore, there are potentially area source dry cleaning facilities that do not generate enough PCE waste to be included in the hazardous waste generator database. In this technology review, the EPA assumes that the total number of dry cleaning facilities is higher than the approximate 9,000 facilities we were able to identify by the RCRA hazardous waste generator database. A copy of the facility list developed for this technology review can be found in the docket (Docket ID No. EPA-HQ-OAR-2005-0155).

E. How does the EPA perform the technology review?

Our technology review primarily focuses on the identification and evaluation of developments in practices, processes, and control technologies that have occurred since the MACT and GACT standards were promulgated. Where we identify such developments, we analyze their technical feasibility, estimated costs, energy implications, and non-air environmental impacts. We also consider the emission reductions associated with applying each development. This analysis informs our decision of whether it is “necessary” to revise the emissions standards. In addition, we consider the appropriateness of applying controls to new sources versus retrofitting existing sources. For this exercise, we consider any of the following to be a “development”:

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

In addition to reviewing the practices, processes, and control technologies that were considered at the time we originally developed (or last updated) the NESHAP, we review a variety of data sources in our investigation of potential practices, processes, or controls to consider. We also review the NESHAP and the available data to determine if there are any unregulated emissions of HAP within the source category, and evaluate this data for use in developing new emission standards. See sections II.C and II.D of this preamble for information on the specific data sources that were reviewed as part of the technology review.

III. Proposed Rule Summary and Rationale

A. What are the results and proposed decisions based on our technology review, and what is the rationale for those decisions?

This section provides a brief discussion of our review of the various information sources listed sections II.C and II.D of this preamble, and our proposed decision pursuant to the CAA section 112(d)(6) technology review to require that all PCE dry-to-dry machines at existing major and area sources have both refrigerated condensers and carbon adsorbers as secondary controls. None of the searches of the RBLC database returned relevant information on new or improved control technologies related to reducing HAP emissions from dry cleaning machines used by facilities in the PCE Dry Cleaning source category. To further identify any developments in practices, processes, and emission control technologies and strategies, the EPA held several meetings with state agencies (including state agency representatives and SBEAP personnel), industry stakeholders and trade association representatives. The EPA asked several questions pertaining to developments since the last technology review on July 26, 2006 (71 FR 42724). The responses to this inquiry did not identify any developments in new or improved control technologies that had not previously been identified and considered that would warrant revision to the existing emission standards for the PCE dry cleaning source category.

Additionally, web search queries for technical literature pertaining to dry cleaning emissions controls, process controls, and work practices did not identify any new or improved practices, processes, or control technologies that were not previously addressed since the technology review performed in 2006.

However, there have been developments in practices, processes, and control technologies that had been identified and considered at the time of adoption of the original NESHAP and/or of the last technology review in 2006. These developments reflect a widespread transition away from some practices that had been allowed to continue for existing sources but were not permitted for new or reconstructed sources. In this technology review, for example, the EPA confirmed with industry representatives that the useful life of a dry-to-dry machine is 15 years. In accordance with the PCE Dry Cleaning NESHAP, PCE dry cleaning machines installed after 1993 for major sources and 2005 for area sources would be equipped with refrigerated condensers and carbon adsorbers. Therefore, the EPA is proposing to require all sources subject to the PCE Dry Cleaning NESHAP, whether new or existing, to be equipped with refrigerated condensers and carbon adsorbers in order to reflect this development.

Refrigerated condensers and carbon adsorbers have been standard secondary controls on all new machines for the last 15 years. The information gathered during the technology review, including details obtained from PCE dry cleaning industry and trade association representatives, revealed that dry-to-dry non-vented dry cleaning machines with refrigerated condensers and carbon adsorbers are the machines that are overwhelmingly used in PCE dry cleaning operations. These fourth generation and newer machines reuse PCE within the machine, which reduces the PCE emissions from the dry cleaning process. These machines are much more effective at recovering solvent vapors than machines equipped with a carbon adsorber or refrigerated condenser alone. ²

² Further details on the evolution of dry cleaning machines and detailed descriptions of the generations of these machines can be found in the refer to the Technology Review for the Perchloroethylene Dry Cleaning Source Category memorandum in the docket as well as at the following websites: https://www.cdc.gov/niosh/docs/hazardcontrol/hc18.html ; https://www.enviroforensics.com/blog/the-history-of-dry-cleaning-solvents-and-the-evolution-of-the-dry-cleaning-machine/ .

It has been over 25 years since the initial NESHAP was promulgated in 1993 (58 FR 66287) and 15 years since the last major revisions (71 FR 42724), which required certain machines to be equipped with refrigerated condensers and carbon adsorbers. Even though we expect that almost all currently operating dry cleaning machines have both of these controls, the EPA has determined that we should preclude any possible future use of any machines that do not have both controls. This revision to the standards is necessary to ensure that current improved PCE emissions control achieved by the widespread use of fourth generation (or better) machines is maintained and not compromised by permissible continued operation of earlier generation machines that have exceeded their useful lives. As such, the EPA is proposing to require that all PCE dry-to-dry machines at existing major and area sources have both refrigerated condensers and carbon adsorbers as secondary controls. This revision to the standards will ensure that all dry cleaning systems, both new and existing, will be similarly controlled.

Additionally, the EPA re-examined the use of alternative solvents in use by the dry cleaning industry. This includes the use of non-PCE containing products such as silica-based solvents and high flash point hydrocarbon solvents. As part of this assessment, the EPA reviewed the list of alternative solvents identified in the 2006 PCE Dry Cleaning NESHAP risk and technology review (RTR) (71 FR 42743), and found that, for the purposes of the PCE Dry Cleaning NESHAP MACT or GACT standards, the list of alternative solvents available to the dry cleaning industry remains essentially the same. Since our 2006 assessment, there have been some products that are no longer marketed, and a few products added to the list. In the 2006 PCE Dry Cleaning NESHAP RTR, we looked at the use of alternative solvents as it relates to a potential ban of PCE use. In the 2006 RTR, we identified limitations with the alternative solvents available, when compared to PCE use. These limitations included a comparison of costs, cleaning ability, ease of use, applicability to certain fabrics, safety, and others. After reviewing our assessment made for the 2006 final rule, and the limitations of the alternative solvents available in 2021, we find no new information that would change our 2006 assessment for purposes of the MACT or GACT standards for this industry.

In response to the voluntary remand of the 2006 rule, we are not proposing any amendments addressing the objections raised by the litigants in Sierra Club et al. v. USEPA, No. 06-1330 and consolidated cases (D.C. Cir.). Since the voluntary remand, EPA has conducted numerous subsequent RTRs for other NESHAPs and source categories and has consistently implemented section 112(d)(6) to take into consideration costs of revising standards and the environmental value of requiring additional HAP reductions when determining whether it is necessary to revise standards taking into consideration developments in practices, processes, and control technologies. We also maintain that we have the discretion to qualitatively consider as a relevant factor the benefits of requiring additional HAP emission reductions and their consequential effect on public health risk under 112(d)(6), as we considered them in the 2006 RTR. Although we are not further considering such reductions and their impacts in this current proposed action because we have not received additional information indicating such are necessary for CAA purposes related to dry cleaning sources beyond the review that we conducted in 2006, we stand by the analyses we conducted and conclusions we reached in the 2006 RTR. Moreover, subsequent reviewing courts have affirmed EPA's now well-established approach of considering costs and cost effectiveness in CAA section 112(d)(6) reviews and making judgments about whether to it is necessary to require additional HAP emissions reductions under CAA section 112(d)(6). See, e.g., National Association for Surface Finishing v. EPA, 795 F.3d 11-12 (D.C. Cir. 2015) (finding that EPA permissibly considered costs in revising standards under section 112(d)(6)); see also, Association of Battery Recyclers, et al. v. EPA, 716 F.3d 667, 673-74 (D.C. Cir. 2013) (approving EPA's consideration of cost as a factor in its section 112(d)(6) decision-making and EPA's reliance on cost effectiveness as a factor in its standard-setting). In addressing industry petitioners' challenge to EPA's CAA section 112(d)(6) determinations, the National Association for Surface Finishing court explained that “[r]eductions in emissions are, of course, relevant to the cost effectiveness of emissions-control technologies in controlling emissions.” See 795 F.3d at 12. The court then affirmed that EPA's conclusions “that more stringent technology-based standards were cost effective and otherwise appropriate” was not arbitrary and capricious. Id (emphasis added). The EPA thus maintains that our approach in the 2006 RTR to base our decisions to revise the standards as necessary for dry cleaners located in residential settings, based in part on the unique public health impacts that the additionally mandated HAP reductions would mitigate in that particular context, was warranted under CAA section 112(d)(6).

Consequently, what may have appeared novel in 2006 to the litigants in the earliest stages of the EPA's development of the RTR program (the EPA's consideration of costs and HAP reduction along with the enumerated factors in CAA section 112(d)(6)) has become settled and judicially endorsed practice, and it is not necessary for the EPA to fundamentally re-evaluate that well-established process in this follow-up technology review or in response to the voluntary remand. Moreover, since the 2006 RTR, the EPA has not received any information calling into question the risk-based information that supported our action requiring elimination of PCE emissions from systems located in buildings with a residence. Nor has the EPA received additional information addressing the specific risks presented by PCE emissions to ambient air from co-commercial PCE dry cleaning systems ( e.g., those located in strip malls with adjacently located other commercial entities) that suggest that our decision in 2006 to limit the required elimination of PCE emissions to co-residential settings was unwarranted. The EPA requests public comments on our response to the remand, particularly on our proposed determination that no specific revisions to the standards are necessary in light of the remand.

B. What compliance dates are we proposing, and what is the rationale for the proposed compliance dates?

The EPA is proposing that existing affected sources would comply with the proposed amendments in this rulemaking no later than 180 days after the effective date of the final rule. The affected existing facilities would have to continue to meet the current requirements of 40 CFR part 63, subpart M, until the applicable compliance date of the amended rule. As discussed in section III.B of this preamble, the EPA is proposing to require all dry-to-dry machines at both major and area sources to have both refrigerated condensers and carbon adsorbers as secondary controls. The final action is not expected to be a “major rule” as defined by 5 U.S.C. 804(2). Therefore, the effective date of the final rule would be the promulgation date as specified in CAA section 112(d)(10). From our assessment of the timeframe needed for compliance with the entirety of the revised requirements, the EPA considers a period of 180 days to be the most expeditious compliance period practicable. We base this proposed compliance period on several factors. First, from our discussions with state and local agencies, trade association representatives, and other stakeholders, the EPA found that fourth and fifth generation dry-to-dry machines are standard throughout the industry. Additionally, the EPA confirmed that the useful life of a dry-to-dry machine is 15 years, and that new dry cleaning machines sold in the last 20 years are only fourth and fifth generation machines. Based on these findings, we believe that almost all of the industry is already in compliance with the proposed amendments. The 180 days is provided as a courtesy to allow familiarity with the proposed changes. We solicit comment on this proposed compliance period, and we specifically request submission of information from the sources in the major and area source categories regarding specific actions that would need to be undertaken to comply with the proposed amended requirements and the time needed to make the adjustments for compliance with any of the revised requirements. We note that information provided may result in changes to the proposed compliance date.

IV. Summary of Cost, Environmental, and Economic Impacts

A. What are the affected sources?

The PCE Dry Cleaning NESHAP prescribes a combination of equipment, work practices, and operational requirements. The NESHAP allows regulated sources to determine their major or area source status based on the annual PCE purchases for all machines at a facility. The consumption criterion (which affects the amount of PCE purchased) varies depending on multiple variables, including number of machines, size of business, etc. The affected source is each individual dry cleaning system that uses PCE. Consequently, a single dry cleaning facility could comprise multiple affected sources, if it has multiple dry cleaning systems onsite. As a result, some of a facility's systems could be subject to “new” source requirements under the NESHAP, and some could be “existing” sources, depending upon when they were placed into service.

The July 27, 2006, final rule amendments (71 FR 42743) indicate that at that time, there were approximately 34,000 dry cleaning facilities in the United States, approximately 28,000 of which used PCE. Those estimated counts of the number of overall dry cleaners and PCE dry cleaners are prior to business impacts from the 2008 financial crisis, the coronavirus (COVID-19) pandemic of 2020-2021, recent shifts in consumer demands, changes in garment technologies, fashion trends, dry cleaning machine conversions to alternative solvents, and other factors that have resulted in reductions in the number of PCE dry cleaning operations. Based on information provided by dry cleaning industry stakeholders, including trade organizations, the EPA estimates that the number of PCE dry cleaners decreased by 20 to 30 percent due to the 2008 financial crisis, the aforementioned demand trends in the industry, and increasing replacements of PCE operations with alternative solvent technologies. Additionally, the EPA estimates that another 10 to 15 percent of PCE dry cleaners have ceased operation due to financial impacts from the COVID-19 pandemic. As such, the EPA estimates that there are approximately 10,000 to 15,000 PCE dry cleaning facilities in the U.S.

B. What are the air quality impacts?

The EPA is proposing that all PCE dry-to-dry machines operate with both refrigerated condensers and carbon adsorbers as secondary controls ( i.e., be fourth or fifth generation machines). The PCE dry cleaning facilities that are in operation have most likely realized the reduction in emissions associated with operating both refrigerated condensers and carbon adsorbers. Additionally, any new machines have been required to have both refrigerated condensers and carbon adsorbers since the original promulgation of part 63, subpart M, in 1993 (for major sources) and the 2006 RTR (for area sources); any existing third generation or older machines at the time of those rules are now beyond their 15-year expected lifespan. For those facilities who may still be operating older machines, the proposed amendments of this rulemaking would reduce emissions by mandating the use of newer machines with the required controls.

Indirect or secondary air emissions impacts are impacts that would result from the increased electricity usage associated with the operation of control devices ( i.e., increased secondary emissions of criteria pollutants from power plants). Energy impacts consist of the electricity and steam needed to operate control devices and other equipment that would be required under this proposed rule. The EPA expects minimal secondary air emissions impacts or energy impacts from this rulemaking.

C. What are the cost impacts?

Any new PCE dry-to-dry machines purchased in the last 20 years for this source category are closed-loop dry-to-dry machines with a refrigerated condenser and a carbon adsorber ³ and thus would not be impacted by these proposed amendments. The PCE dry cleaning operations that would be impacted by the proposed amendments would most likely already have incurred the costs of installing and operating these fourth-generation machines. Specifically, any older machines ( i.e., third generation or prior transfer machines or dry-to-dry machines without refrigerated condenser and a carbon adsorber) would now be beyond their projected useful life, and we expect that operators would have already replaced these machines with fourth- and fifth-generation machines, as part of continued PCE dry cleaning operations. However, we also recognize that there may be some facilities that are still operating older PCE machines. We expect that if there are any facilities operating older machines, they would be area sources. For reasons previously discussed in section II.C and II.D of this preamble, the number of older machines in use is unknown. The EPA is soliciting comment on the number of sources operating older machines and will reassess the cost and economic impacts if we receive additional data.

³ U.S. EPA, Office of Air Quality Planning and Standards. Phone Conference Communication with Dry Cleaning & Laundry Institute (DLI) and National Cleaners Association (NCA) representatives. March 2021.

Based on available information, the EPA concludes that most or all existing PCE dry cleaning facilities that are subject to the NESHAP would be able to comply with the proposed requirements without incurring additional capital or operational costs because they have purchased newer machines as part of normal business operations. There may be small number of facilities operating older machines, but we do not have information on these facilities to determine the full cost impacts to these entities. We have assessed the costs associated with reading and understanding the proposed amendments as a total one-time cost of $108 per facility, using a labor rate for 4 hours of review time, as described in section IV. D of this preamble. Based on an estimate of 10,000 to 15,000 facilities that are subject to the PCE Dry Cleaning NESHAP, the total cost is estimated to be in a range of $1,080,000 to $1,620,000 nationwide.

D. What are the economic impacts?

Economic impact analyses focus on changes in market prices and output levels. If changes in market prices and output, such as clothes to be cleaned in the primary markets served by dry cleaners, are significant enough, impacts on other markets may also be examined. Both the magnitude of costs needed to comply with a proposed rule and the distribution of these costs among affected facilities can have a role in determining how the market would change in response to a proposed rule. To estimate the economic impacts of this proposal, the EPA reviewed the mean hourly wage of $12.29 per hour indicated by the Bureau of Labor Statistics for laundry and dry cleaning workers in 2021. We then applied a benefits and overhead factor of 1.1 to calculate a total compensation rate of $26.86 per hour. Additionally, we estimated 4 hours for a dry cleaning worker to familiarize themselves with the proposed amendments to the rule, and calculated a cost of $108 per facility ($23.86/hr × 4 hr/facility = $107.44, or $108/facility). This is a conservative estimate. We anticipate that some facilities may not require 4 hours to review the proposed amendments to the rule. These costs are not expected to result in a significant impact to primary markets served by dry cleaners.

We do not anticipate any significant economic impacts from these proposed amendments to require all dry-to-dry machines to have both refrigerated condensers and carbon adsorbers as secondary controls. This is consistent with our assumptions made in the original rule development that the useful life of a machine is 15 years. Machines installed after 1993 for major sources and 2005 for area sources are to be equipped with refrigerated condensers and carbon adsorbers, in accordance with the NESHAP. Thus, given the useful life of a typical dry-cleaning machine, the EPA expects that most or all sources in the regulated source categories would have discontinued use of third generation or older machines by 2021.

E. What are the benefits?

Although the EPA does not anticipate reductions in HAP emissions as a result of the proposed amendments, the Agency believes that the action, if finalized as proposed, would result in improved clarity to the rule. Specifically, the proposed amendments would revise the standards such that it is clear that only fourth (or newer) generation machines can be used in PCE solvent dry cleaning operations. This requirement is implied in the useful life determination at the inception of the original NESHAP; however, this proposed amendment would make this assumption clear and would work to eliminate any older machines (third generation and prior) that could still be operating. This action would further protect public health and the environment and would ultimately result in less potential confusion or misinterpretation by the regulated community.

F. What analysis of environmental justice did we conduct?

Executive Order 12898 directs the EPA, to the greatest extent practicable and permitted by law, to make environmental justice part of its mission by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects of its programs, policies and activities on minority populations and low-income populations in the United States. (59 FR 7629, February 16, 1994.) Additionally, Executive Order 13985 was signed to advance racial equity and support underserved communities through Federal Government actions (86 FR 7009, January 20, 2021). The EPA defines environmental justice (EJ) as the fair treatment and meaningful involvement of all people regardless of race, color, national origin, or income with respect to the development, implementation, and enforcement of environmental laws, regulations, and policies. The EPA further defines the term fair treatment to mean that “no group of people should bear a disproportionate burden of environmental harms and risks, including those resulting from the negative environmental consequences of industrial, governmental, and commercial operations or programs and policies” ( https://www.epa.gov/environmentaljustice ). In recognizing that minority and low-income populations often bear an unequal burden of environmental harms and risks, the EPA continues to consider ways of protecting them from adverse public health and environmental effects of air pollution. To examine the potential for any EJ issues that might be associated with the source categories, we performed a demographic analysis, which is an assessment of individual demographic groups of the populations living within 5 kilometers (km) and within 50 km of the facilities. The EPA then compared the data from this analysis to the national average for the demographic indicators.

In the analysis, we evaluated the percentage of minority and low-income groups within the populations that live near identified PCE dry cleaning facilities. The PCE Dry Cleaning NESHAP applies to sources often operating as small facilities, and limited location data for these small subject facilities were available, adding considerable uncertainty to the analysis. As described in the technology review memorandum, available in the docket for this action, and section II.C of this preamble, we did conduct searches for available information. The demographic results do not account for emission or risk impacts from sources and may not be fully representative of the full distribution of facilities across all locations and populations. This analysis provides an indication of the potential for disparities in human health or environmental effects.

Our analysis includes the general population of dry cleaners across the country and does not differentiate which facilities are PCE major and area source dry cleaners. As stated above, our analysis indicates that sources are likely to operate compliant technologies to meet the proposed standard. Based upon the number of facilities in this analysis (9,080 facilities), we find that approximately 48 percent of the U.S. population lives within 5 km of a facility, and approximately 87 percent live within 50 km of a facility. We find that dry cleaner facilities are generally located in areas where within the 5 km distance the category of minority demographics are higher than the national average, but demographics generally match the national average within 50 km. We also note that demographics analyses for individual urban facilities often show that the percentages of various minority and disadvantaged populations tend to exceed the national averages due to the urban locations. The results of the demographic analysis for populations within 5 km of the facilities within the source category indicate that the percentage of the minority population (the total population minus the white population) is higher when compared to the national percentage of people who are minority (an average of 48 percent versus 40 percent). These comparisons also hold true for other demographic groups (African American, Other and Multiracial Groups, and Hispanics), whose populations near dry cleaning facilities are approximately an average of 3 percent greater the national average. The demographic group composed of people living in linguistic isolation was an average of approximately 1 percent greater than the national average. The percentages of people in all the remaining demographic groups were below the national average for their respective demographic. The methodology and the results of the demographic analysis are presented in a technical report, Technology Review— Analysis of Demographic Factors for Populations Living Near the Dry-cleaners for Major and Area Sources, available in this docket for this action (Docket ID EPA-HQ-OAR-2005-0155).

Table 1—Proximity Demographic Assessment Results
Notes:
• The population numbers and demographic percentages are based on the Census' 2015-2019 American Community Survey five-year averages and include Puerto Rico. Demographic percentages based on different averages may differ.
• Minority population is the total population minus the white population.
• To avoid double counting, the “Hispanic or Latino” category is treated as a distinct demographic category for these analyses. A person is identified as one of five racial/ethnic categories above: White, African American, Native American, Other and Multiracial, or Hispanic/Latino. A person who identifies as Hispanic or Latino is counted as Hispanic/Latino for this analysis, regardless of what race this person may have also identified as in the Census.
	Nationwide	Source category
	Nationwide	Population within 50 km of 9,080 facilities	Population within 5 km of 9,080 facilities
Total Population	328,016,242	285,838,206	156,313,800
White and Minority by Percent
White	60	60	52
Minority	40	40	48
Minority by Percent
African American	12	13	15
Native American	0.7	0.5	0.4
Hispanic or Latino (includes white and nonwhite)	19	18	22
Other and Multiracial	8	8	11
Income by Percent
Below Poverty Level	13	13	14
Above Poverty Level	87	87	86
Education by Percent
Over 25 and without a High School Diploma	12	12	12
Over 25 and with a High School Diploma	88	88	88
Linguistically Isolated by Percent
Linguistically Isolated	5	5	7

This action is not likely to change levels of emissions near facilities. Based on our technology review, we did not identify, and are not requiring, any new add-on control technologies, process equipment, work practices or procedures that were not already in place when the NESHAP was promulgated in 1993 or considered when the NESHAP was last reviewed in 2006; and we did not identify other developments in practices, processes, or control technologies that would result in additional emission reductions for purposes of these MACT and GACT standards, beyond the transition to greater use of fourth and fifth generation machines. Given the useful life of a dry cleaning machine, and the fact that industry should already be operating the newer machines with both refrigerated condensers and carbon adsorbers as secondary controls, we do not anticipate reductions in HAP emissions as a result of the proposed amendments.

V. Request for Comments

We solicit comments on this proposed action. In addition to general comments on this proposed action, we are also interested in additional data that may improve the analyses. We are specifically interested in receiving any information regarding the number of third generation and earlier model dry cleaning machines that potentially could still be operating, and on other developments in practices, processes, and control technologies that reduce HAP emissions beyond the widespread shift to fourth generation (or better) machines.

VI. Statutory and Executive Order Reviews

Additional information about these statutes and Executive orders can be found at https://www.epa.gov/laws-regulations/laws-and-executive-orders.

A. Executive Order 12866: Regulatory Planning and Review and Executive Order 13563: Improving Regulation and Regulatory Review

This action is not a significant regulatory action and was, therefore, not submitted to OMB for review.

B. Paperwork Reduction Act (PRA)

This action does not impose an information collection burden under the PRA. The action does not contain any information collection activities.

C. Regulatory Flexibility Act (RFA)

I certify that this action will not have a significant economic impact on a substantial number of small entities under the RFA. The small entities subject to the requirements of this action are industrial and commercial dry cleaning facilities that use PCE. The North American Industry Classification System (NAICS) codes applicable to 40 CFR part 63, subpart M, are 812310 (coin-operated laundries and dry cleaners), 812320 (dry cleaning and laundry services other than coin-operated services), and 812332 (industrial launderers). The small business size definitions for those industries are $8.0 million, $6.0 million, and $41.5 million respectively. The costs associated with reading and understanding the proposed amendments are a one-time cost of $108 per facility and are not significant. In addition, the useful life of a PCE dry-to-dry machine is assumed to be 15 years, and the industry has already purchased fourth or fifth generation dry-to-dry machines that are in compliance with these amendments as part of normal operational costs. We have therefore concluded that this action will not have a significant economic impact on a substantial number of small entities.

D. Unfunded Mandates Reform Act (UMRA)

This action does not contain any unfunded mandate as described in UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect small governments. The action imposes no enforceable duty on any state, local, or tribal governments or the private sector. This action does not contain an unfunded mandate of $100 million or more as described in UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect small governments. While this action creates an enforceable duty on the private sector, the cost does not exceed $100 million or more.

E. Executive Order 13132: Federalism

This action does not have federalism implications. It will not have substantial direct effects on the states, on the relationship between the National Government and the states, or on the distribution of power and responsibilities among the various levels of government. The action affects private industry and does not impose economic costs on state or local governments.

F. Executive Order 13175: Consultation and Coordination With Indian Tribal Governments

This action has tribal implications. However, it will neither impose substantial direct compliance costs on federally recognized tribal governments, nor preempt tribal law. The EPA consulted with tribal officials under the EPA Policy on Consultation and Coordination with Indian tribes early in the process of developing this regulation to permit them to have meaningful and timely input into its development. A summary of that consultation is provided in the docket for this action (Docket ID No. EPA-HQ-OAR-2005-0155).

G. Executive Order 13045: Protection of Children From Environmental Health Risks and Safety Risks

This action is not subject to Executive Order 13045 because it is not economically significant as defined in Executive Order 12866, and because the EPA does not believe the environmental health or safety risks addressed by this action present a disproportionate risk to children.

H. Executive Order 13211: Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use

This action is not subject to Executive Order 13211, because it is not a significant regulatory action under Executive Order 12866.

I. National Technology Transfer and Advancement Act (NTTAA)

This rulemaking does not involve technical standards.

J. Executive Order 12898: Federal Actions To Address Environmental Justice in Minority Populations and Low-Income Populations

The EPA believes that this action does not have disproportionately high and adverse human health or environmental effects on minority populations, low-income populations and/or indigenous peoples, as specified in Executive Order 12898 (59 FR 7629, February 16, 1994).

The documentation for this decision is contained in section IV.B of this preamble and the technical report, Risk and Technology Review Analysis of Demographic Factors for Populations Living Perchloroethylene Dry Cleaning Facility Source Category Operations.

List of Subjects in 40 CFR Part 63

Environmental protection, Air pollution control, Hazardous substances, Reporting and recordkeeping requirements.

Michael S. Regan,

Administrator.

For the reasons stated in the preamble, EPA proposes to amend 40 CFR part 63 as set forth below:

PART 63—NATIONAL EMISSION STANDARDS FOR HAZARDOUS AIR POLLUTANTS FOR SOURCE CATEGORIES

1. The authority citation for part 63 continues to read as follows:

Authority:

42 U.S.C. 7401 et seq.

Subpart M—National Perchloroethylene Air Emission Standards for Dry Cleaning Facilities

2. Section 63.322 is amended by:

a. Revising paragraph (a) introductory text;

b. Adding paragraph (a)(4); and

c. Revising paragraph (o)(2).

The revisions and addition read as follows:

§63.322 Standards.

(a) Before [date 180 days after date of publication of the final rule in the Federal Register ], the owner or operator of each existing dry cleaning system and of each new transfer machine system and its ancillary equipment installed between December 9, 1991, and September 22, 1993, shall comply with either paragraph (a)(1) or (2) of this section and shall comply with paragraph (a)(3) of this section if applicable. On and after [date 180 days after date of publication of the final rule in the Federal Register ], the owner or operator of any existing dry cleaning system shall comply with paragraph (a)(4) of this section.

* * * * *

(4) The owner or operator of each existing dry cleaning system shall route the air-perchloroethylene (PCE) gas-vapor stream contained within each dry cleaning machine through a refrigerated condenser and pass the air-PCE gas-vapor stream from inside the dry cleaning machine drum through a non-vented carbon adsorber or equivalent control device immediately before the door of the dry cleaning machine is opened. The carbon adsorber must be desorbed in accordance with manufacturer's instructions.

* * * * *

(o) * * *

(2) The owner or operator of each dry cleaning system at an area source shall route the air-PCE gas-vapor stream contained within each dry cleaning machine through a refrigerated condenser and pass the air-PCE gas-vapor stream from inside the dry cleaning machine drum through a non-vented carbon adsorber or equivalent control device immediately before the door of the dry cleaning machine is opened. The carbon adsorber must be desorbed in accordance with manufacturer's instructions.

* * * * *

3. Section 63.324 is amended by revising paragraphs (d)(5) and (6) to read as follows:

§63.324 Reporting and recordkeeping requirements.

* * * * *

(d) * * *

(5) The date and monitoring results (temperature sensor or pressure gauge), as specified in §63.323, when a refrigerated condenser is used to comply with §63.322(a), (b), or (o); and

(6) The date and monitoring results, as specified in §63.323, when a carbon adsorber is used to comply with §63.322(a)(2) or (b)(3).

* * * * *

4. Section 63.325 is amended by revising paragraph (a)(7) to read as follows:

§63.325 Determination of equivalent emission control technology.

(a) * * *

(7) Information on the cross-media impacts (to water and solid waste) of the candidate emission control technology and demonstration that the cross-media impacts are less than or equal to the cross-media impacts of a refrigerated condenser and carbon adsorber.

* * * * *

[FR Doc. 2021-26469 Filed 12-23-21; 8:45 am]

BILLING CODE 6560-50-P

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

2024-06-11T05:00:00Z

EPA Proposed Rule: Significant New Use Rules on Certain Chemical Substances (23-3.5e)

EPA is proposing significant new use rules (SNURs) under the Toxic Substances Control Act (TSCA) for chemical substances that were the subject of premanufacture notices (PMNs) and are also subject to a TSCA Order. A SNUR requires persons who intend to manufacture (defined by statute to include import) or process a particular chemical substance for an activity that is identified as a significant new use in the SNUR to notify EPA at least 90 days before commencing that activity. The required notification initiates EPA's evaluation of the conditions of use identified in the notification to EPA. In addition, the manufacture or processing for the significant new use may not commence until EPA has conducted a review of the required notification, made an appropriate determination regarding that notification, and taken such actions as required by that determination.

DATES: Comments must be received on or before July 11, 2024, published in the Federal Register June 11, 2024, page 49700.

View proposed rule.

Hazardous Chemicals Extremely Hazardous Substances Chemical Lists EHSs HHC Chemicals Highly Hazardous Chemical CERCLA Hazardous Substances TSCA Toxic Chemicals Toxic Substances SMS Essential SMS Trial SMS Advanced SMS Trial Enterprise SMS Premium r40CFR721 40 CFR 721 40 CFR 721 Significant new uses of chemical substances

2024-06-11T05:00:00Z

EPA Proposed Rule: Significant New Use Rules on Certain Chemical Substances (22-4.5e)

EPA is proposing significant new use rules (SNURs) under the Toxic Substances Control Act (TSCA) for chemical substances that were the subject of premanufacture notices (PMNs) and are also subject to a TSCA Order. The SNURs require persons who intend to manufacture (defined by statute to include import) or process any of these chemical substances for an activity that is proposed as a significant new use by this rule to notify EPA at least 90 days before commencing that activity. The required notification initiates EPA's evaluation of the conditions of use for that chemical substance. In addition, the manufacture or processing for the significant new use may not commence until EPA has conducted a review of the required notification, made an appropriate determination regarding that notification, and taken such actions as required by that determination.

DATES: Comments must be received on or before July 11, 2024, published in the Federal Register June 11, 2024, page 49121.

View proposed rule.

Toxic Chemicals Toxic Substances Highly Hazardous Chemical Chemicals CERCLA Hazardous Substances Hazardous Chemicals Chemical Lists Extremely Hazardous Substances EHSs HHC TSCA SMS Essential SMS Trial SMS Advanced SMS Trial Enterprise SMS Premium r40CFR721 40 CFR 721 40 CFR 721 Significant new uses of chemical substances

2024-06-06T05:00:00Z

Methylene chloride ban: Is your facility affected?

Methylene chloride, a volatile liquid chemical, poses severe health risks to individuals exposed to the substance. Despite the hazards, its use continues across consumer, commercial, and industrial applications. For example, it's used in automotive products, adhesives, and solvents to form other chemicals.

To address the health hazards posed, the Environmental Protection Agency (EPA) finalized a risk management rule under the Toxic Substances Control Act (TSCA) that prohibits nearly all uses of methylene chloride.

Use this guide to help you determine whether the methylene chloride ban impacts your operations.

Risks of methylene chloride

EPA made a final determination in November 2022 that methylene chloride as a whole chemical substance presents an unreasonable risk of injury to health under its conditions of use. The chemical is known to cause neurotoxicity from short-term exposure and cancer and liver harm due to long-term exposure. There are even documented cases of sudden death caused by short-term contact with the chemical substance.

When EPA determines a chemical poses an unreasonable risk, TSCA requires the agency to develop regulations to reduce or eliminate the risk. That’s where this final rule comes in (40 CFR Part 751 Subpart B), banning all consumer uses and most commercial and industrial uses of methylene chloride.

Requirements of methylene chloride ban

Manufacturers (including importers), processors, and distributors must phase out methylene chloride (including methylene chloride-containing products) for all consumer uses within one year and most commercial and industrial uses within two years.

Here’s an overview of the phaseout schedule:

Methylene chloride phaseouts
Prohibited:	For:	After:
Distribution to retailers	Any use	February 3, 2025
Distribution by retailers	Any use	May 5, 2025
Manufacturing (including importing)	Any use (apart from certain exempt commercial and industrial uses)	May 5, 2025
Processing	Any use (apart from certain exempt commercial and industrial uses)	August 1, 2025
Distribution in commerce	Any use (apart from certain exempt commercial and industrial uses)	January 28, 2026
Use for commercial or industrial purposes	Any use (apart from certain exempt commercial and industrial uses)	April 28, 2026

Downstream notifications

The regulations also require manufacturers, processors, and distributors that ship methylene chloride to notify the receiving companies of the prohibitions through Safety Data Sheets (SDSs) and to maintain records that document:

Information about the companies that receive the shipments,
A copy of the required notification (listed at 751.111(d)) added to SDSs), and
The amount of methylene chloride shipped.

Remaining uses

The final rule allows very few time-limited exemptions for commercial and industrial uses of methylene chloride to:

Produce other chemicals,
Manufacture plastic and rubber (including polycarbonates),
Produce battery separators for electric vehicles,
Aid processing in a closed system,
Use as a laboratory chemical, and
Employ in solvent welding.

Facilities involved in the remaining uses of methylene chloride must comply with EPA’s new Workplace Chemical Protection Program. It requires facilities to:

Meet exposure limits,
Establish and maintain regulated areas,
Conduct exposure monitoring,
Implement controls to reduce exposure (including exposure plans),
Provide respiratory and dermal personal protective equipment to affected employees,
Train potentially exposed workers, and
Maintain records of:
- Exposure control and monitoring data;
- Objective data generated during the past five years (if used to forgo the initial exposure monitoring);
- Notifying potentially exposed individuals of the exposure control plans;
- Exemption-related documentation; and
- Information related to refinishing wooden furniture, decorative pieces, and architectural fixtures, if applicable.

Facilities must keep these records for at least five years from the date they’re generated.

Does the rule apply to any amount of methylene chloride?

The final rule sets a de minimis exemption threshold of 0.1 percent by weight to account for impurities and the unintended presence of methylene chloride. In other words, products that contain less than 0.1 percent of methylene chloride aren’t subject to the final rule.

However, note that this provision doesn’t apply to 751.105, which bans the sale and distribution of methylene chloride-containing consumer paint and coating removal products.

Tips for phasing out methylene chloride

If your facility is involved in manufacturing, processing, or distributing methylene chloride (including methylene chloride-containing products), consider these tips to help you comply with the new regulations:

List your facility’s uses of methylene chloride to determine which processes will be impacted. Begin researching alternative products to replace methylene chloride in these processes.
Identify which phaseout timelines apply.
Audit your processes and procedures to determine ways to improve employee safety.
Establish a plan to implement any applicable phaseouts of methylene chloride and actions to better protect potentially exposed employees.

Key to remember: EPA will phase in its ban on methylene chloride for all consumer uses and most commercial and industrial uses over the next two years.

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Most Recent Highlights In Safety & Health

2024-05-28T05:00:00Z

EPA launches Chemical Data Reporting resource portal

Just in time for the 2024 Chemical Data Reporting (CDR) submission period (beginning June 1), the Environmental Protection Agency (EPA) launched CDR GuideME. This online portal centralizes all CDR resources into one location.

The portal contains all CDR guidance documents and other training materials, including reporting instructions, fact sheets, and EPA responses to industry questions. It also enables users to search all CDR questions and answers for specific topics.

In addition to the new resource portal, EPA updated the Central Data Exchange system (through which the reports are submitted). The agency:

Incorporated 2024 CDR reporting codes and the years covered by the report,
Added an updated spreadsheet for bulk uploads of chemical information, and
Improved the functionality to copy substantiations of Confidential Business Information claims and to access and save copies of submitted records.

2024 report

The 2024 CDR submission period runs from June 1 to September 30, 2024, and covers activities during the calendar years 2020-2023.

Manufacturers (including importers) that meet certain production volume thresholds of chemicals on the Toxic Substances Control Act Chemical Substance Inventory must submit a report every four years. The report includes data on the manufacturing, processing, and use of the chemicals during the preceding four calendar years.

Key to remember: EPA’s new CDR GuideME portal centralizes all Chemical Data Reporting guidance documents and resources into one place to make the reporting process easier.

tsca toxic release inventory reporting section 313 reporting form r tri reporting toxic chemical release reporting form a sms advanced sms trial enterprise sms premium sms essential sms trial r40cfr711 40 cfr 711 40 cfr 711 tsca chemical data reporting requirements

2024-05-24T05:00:00Z

EPA Final Rule: Consumer Confidence Reports Water Infrastructure

The U.S. Environmental Protection Agency (EPA) is revising the Consumer Confidence Report (CCR) Rule in accordance with America's Water Infrastructure Act (AWIA) of 2018 (United States, 2018) and is requiring States, territories, and Tribes with primary enforcement responsibility to report compliance monitoring data (CMD) to the EPA. The revisions will improve the readability, clarity, and understandability of CCRs as well as the accuracy of the information presented, improve risk communication in CCRs, incorporate electronic delivery options, provide supplemental information regarding lead levels and control efforts, and require systems who serve 10,000 or more persons to provide CCRs to customers biannually (twice per year). The final rule requirements for States to submit to the EPA CMD for all National Primary Drinking Water Regulations (NPDWRs) will improve the EPA's ability to fulfill oversight responsibilities under the Safe Drinking Water Act (SDWA).

DATES: This final rule is effective on June 24, 2024, published in the Federal Register May 24, 2024, page 45980.

View final rule.

§141.151 Purpose and applicability of this subpart.
(a), (c), and (f)	Revised	View text
§141.152 Effective dates.
(a) through (c), (d)(1), and (d)(2)	Revised	View text
(d)(3)	Added	View text
§141.153 Content of the reports.
(a) and (b)(2)	Revised	View text
(c)(1)(iii) and (c)(5)	Added	View text
(d)	Revised	View text
(e)(1) introductory text and (e)(3) introductory text	Revised	View text
(f) introductory text, (f)(3), and (h)	Revised	View text
§141.154 Required additional health information.
(a), (b), (c)(1) and (2), and (d)(2)	Revised	View text
(e) and (f)	Removed	View text
§141.155 Report delivery, reporting, and recordkeeping.
Section heading, (a) through (c), (e), (f), (g) introductory text, (g)(1)(i), and (g)(2)	Revised	View text
(i) and (j)	Added	View text
§141.156 Summary of report contents.
Entire section	Added	View text
Appendix A to Subpart O to Part 141—Regulated Contaminants
entries for “Total Coliform Bacteria †” and “Total Coliform Bacteria ‡”	Removed	View text
entry for “Total Coliform Bacteria”	Added	View text
entry for “Fecal coliform and E. coli †”	Removed	View text
entries for “ E. coli ‡”and “Arsenic (ppb)”	Revised	View text
footnotes †, ‡, and 1	Removed	View text
§142.14 Records kept by States.
(h)	Added	View text
§142.15 Reports by States.
(b) introductory text and (b)(2)	Revised	View text
(b)(3)	Added	View text
§142.16 Special primacy requirements.
(f)(1) and (3)	Revised	View text
(f)(5)	Added	View text

Previous Text

§141.151 Purpose and applicability of this subpart.

(a) This subpart establishes the minimum requirements for the content of annual reports that community water systems must deliver to their customers. These reports must contain information on the quality of the water delivered by the systems and characterize the risks (if any) from exposure to contaminants detected in the drinking water in an accurate and understandable manner.

* * * * *

(c) For the purpose of this subpart, customers are defined as billing units or service connections to which water is delivered by a community water system.

* * * * *

(f) For purpose of §141.154 and 141.155 of this subpart, the term "primacy agency" refers to the State or tribal government entity that has jurisdiction over, and primary enforcement responsibility for, public water systems, even if that government does not have interim or final primary enforcement responsibility for this rule. Where the State or tribe does not have primary enforcement responsibility for public water systems, the term "primacy agency" refers to the appropriate EPA regional office.

§141.152 Effective dates.

(a) The regulations in this subpart shall take effect on September 18, 1998.

(b) Each existing community water system must deliver its first report by October 19, 1999, its second report by July 1, 2000, and subsequent reports by July 1 annually thereafter. The first report must contain data collected during, or prior to, calendar year 1998 as prescribed in §141.153(d)(3). Each report thereafter must contain data collected during, or prior to, the previous calendar year.

(c) A new community water system must deliver its first report by July 1 of the year after its first full calendar year in operation and annually thereafter.

(d) * * *

(1) No later than April 19, 1999, by April 1, 2000, and by April 1 annually thereafter or

(2) On a date mutually agreed upon by the seller and the purchaser, and specifically included in a contract between the parties.

* * * * *

§141.153 Content of the reports.

(a) Each community water system must provide to its customers an annual report that contains the information specified in this section and §141.154.

(b) * * *

(2) If a source water assessment has been completed, the report must notify consumers of the availability of this information and the means to obtain it. In addition, systems are encouraged to highlight in the report significant sources of contamination in the source water area if they have readily available information. Where a system has received a source water assessment from the primacy agency, the report must include a brief summary of the system's susceptibility to potential sources of contamination, using language provided by the primacy agency or written by the operator.

* * * * *

(d) Information on Detected Contaminants.

(1) This sub-section specifies the requirements for information to be included in each report for contaminants subject to mandatory monitoring (except Cryptosporidium). It applies to:

(i) Maximum Contaminant Level Goal or MCLG: The level of a contaminant in drinking water below which there is no known or expected risk to health. MCLGs allow for a margin of safety.

(ii) Maximum Contaminant Level or MCL: The highest level of a contaminant that is allowed in drinking water. MCLs are set as close to the MCLGs as feasible using the best available treatment technology.

(2) The data relating to these contaminants must be displayed in one table or in several adjacent tables. Any additional monitoring results which a community water system chooses to include in its report must be displayed separately.

(3) The data must be derived from data collected to comply with EPA and State monitoring and analytical requirements during calendar year 1998 for the first report and subsequent calendar years thereafter except that:

(i) Where a system is allowed to monitor for regulated contaminants less often than once a year, the table(s) must include the date and results of the most recent sampling and the report must include a brief statement indicating that the data presented in the report are from the most recent testing done in accordance with the regulations. No data older than 5 years need be included.

(ii) Results of monitoring in compliance with §141.142 and 141.143 need only be included for 5 years from the date of last sample or until any of the detected contaminants becomes regulated and subject to routine monitoring requirements, whichever comes first.

(4) For detected regulated contaminants (listed in appendix A to this subpart), the table(s) must contain:

(i) The MCL for that contaminant expressed as a number equal to or greater than 1.0 (as provided in appendix A to this subpart);

(ii) The MCLG for that contaminant expressed in the same units as the MCL;

(iii) If there is no MCL for a detected contaminant, the table must indicate that there is a treatment technique, or specify the action level, applicable to that contaminant, and the report must include the definitions for treatment technique and/or action level, as appropriate, specified in paragraph (c)(3) of this section;

(iv) For contaminants subject to an MCL, except turbidity, total coliform, fecal coliform and E. coli, the highest contaminant level used to determine compliance with an NPDWR and the range of detected levels, as follows:

(A) When compliance with the MCL is determined annually or less frequently: The highest detected level at any sampling point and the range of detected levels expressed in the same units as the MCL.

(B) When compliance with the MCL is determined by calculating a running annual average of all samples taken at a monitoring location: the highest average of any of the monitoring locations and the range of all monitoring locations expressed in the same units as the MCL. For the MCLs for TTHM and HAA5 in §141.64(b)(2), systems must include the highest locational running annual average for TTHM and HAA5 and the range of individual sample results for all monitoring locations expressed in the same units as the MCL. If more than one location exceeds the TTHM or HAA5 MCL, the system must include the locational running annual averages for all locations that exceed the MCL.

(C) When compliance with the MCL is determined on a system-wide basis by calculating a running annual average of all samples at all monitoring locations: the average and range of detection expressed in the same units as the MCL. The system is required to include individual sample results for the IDSE conducted under subpart U of this part when determining the range of TTHM and HAA5 results to be reported in the annual consumer confidence report for the calendar year that the IDSE samples were taken.

Note to paragraph (d)(4)(iv): When rounding of results to determine compliance with the MCL is allowed by the regulations, rounding should be done prior to multiplying the results by the factor listed in appendix A of this subpart;

(v) For turbidity.

(A) When it is reported pursuant to §141.13: The highest average monthly value.

(B) When it is reported pursuant to the requirements of §141.71: the highest monthly value. The report should include an explanation of the reasons for measuring turbidity.

(C) When it is reported pursuant to §141.73 or §141.173 or §141.551: the highest single measurement and the lowest monthly percentage of samples meeting the turbidity limits specified in §141.73 or §141.173, or §141.551 for the filtration technology being used.

(vi) For lead and copper: the 90th percentile concentration of the most recent round(s) of sampling, the number of sampling sites exceeding the action level, and the range of tap sampling results;

(vii) For total coliform analytical results until March 31, 2016:

(A) The highest monthly number of positive samples for systems collecting fewer than 40 samples per month; or

(B) The highest monthly percentage of positive samples for systems collecting at least 40 samples per month;

(viii) For fecal coliform and E. coli until March 31, 2016: The total number of positive samples;

(ix) The likely source(s) of detected contaminants to the best of the operator's knowledge. Specific information regarding contaminants may be available in sanitary surveys and source water assessments, and should be used when available to the operator. If the operator lacks specific information on the likely source, the report must include one or more of the typical sources for that contaminant listed in appendix A to this subpart that is most applicable to the system;

(x) For E. coli analytical results under subpart Y: The total number of positive samples;

(xi) The report shall include a statement that a service line inventory (including inventories consisting only of a statement that there are no lead service lines) has been prepared and include instructions to access the service line inventory; and

(xii) The report shall notify consumers that complete lead tap sampling data are available for review and shall include information on how to access the data.

(5) If a community water system distributes water to its customers from multiple hydraulically independent distribution systems that are fed by different raw water sources, the table should contain a separate column for each service area and the report should identify each separate distribution system. Alternatively, systems could produce separate reports tailored to include data for each service area.

(6) The table(s) must clearly identify any data indicating violations of MCLs, MRDLs, or treatment techniques, and the report must contain a clear and readily understandable explanation of the violation including: the length of the violation, the potential adverse health effects, and actions taken by the system to address the violation. To describe the potential health effects, the system must use the relevant language of appendix A to this subpart.

(7) For detected unregulated contaminants for which monitoring is required (except Cryptosporidium), the table(s) must contain the average and range at which the contaminant was detected. The report may include a brief explanation of the reasons for monitoring for unregulated contaminants.

(e) * * *

(1) If the system has performed any monitoring for Cryptosporidium, including monitoring performed to satisfy the requirements of §141.143, which indicates that Cryptosporidium may be present in the source water or the finished water, the report must include:

* * * * *

(3) If the system has performed additional monitoring which indicates the presence of other contaminants in the finished water, EPA strongly encourages systems to report any results which may indicate a health concern. To determine if results may indicate a health concern, EPA recommends that systems find out if EPA has proposed an NPDWR or issued a health advisory for that contaminant by calling the Safe Drinking Water Hotline (800-426-4791). EPA considers detects above a proposed MCL or health advisory level to indicate possible health concerns. For such contaminants, EPA recommends that the report include:

* * * * *

(f) Compliance with NPDWR. In addition to the requirements of §141.153(d)(6), the report must note any violation that occurred during the year covered by the report of a requirement listed below, and include a clear and readily understandable explanation of the violation, any potential adverse health effects, and the steps the system has taken to correct the violation.

* * * * *

(3) Lead and copper control requirements prescribed by subpart I of this part. For systems that fail to take one or more actions prescribed by §141.80(d), 141.81, 141.82, 141.83 or 141.84, the report must include the applicable language of appendix A to this subpart for lead, copper, or both.

* * * * *

(h) Additional information:

(1) The report must contain a brief explanation regarding contaminants which may reasonably be expected to be found in drinking water including bottled water. This explanation may include the language of paragraphs (h)(1)(i) through (iii) or systems may use their own comparable language. The report also must include the language of paragraph (h)(1)(iv) of this section.

(i) The sources of drinking water (both tap water and bottled water) include rivers, lakes, streams, ponds, reservoirs, springs, and wells. As water travels over the surface of the land or through the ground, it dissolves naturally-occurring minerals and, in some cases, radioactive material, and can pick up substances resulting from the presence of animals or from human activity.

(ii) Contaminants that may be present in source water include:

(A) Microbial contaminants, such as viruses and bacteria, which may come from sewage treatment plants, septic systems, agricultural livestock operations, and wildlife.

(B) Inorganic contaminants, such as salts and metals, which can be naturally-occurring or result from urban stormwater runoff, industrial or domestic wastewater discharges, oil and gas production, mining, or farming.

(C) Pesticides and herbicides, which may come from a variety of sources such as agriculture, urban stormwater runoff, and residential uses.

(D) Organic chemical contaminants, including synthetic and volatile organic chemicals, which are by-products of industrial processes and petroleum production, and can also come from gas stations, urban stormwater runoff, and septic systems.

(E) Radioactive contaminants, which can be naturally-occurring or be the result of oil and gas production and mining activities.

(iii) In order to ensure that tap water is safe to drink, EPA prescribes regulations which limit the amount of certain contaminants in water provided by public water systems. FDA regulations establish limits for contaminants in bottled water which must provide the same protection for public health.

(iv) Drinking water, including bottled water, may reasonably be expected to contain at least small amounts of some contaminants. The presence of contaminants does not necessarily indicate that water poses a health risk. More information about contaminants and potential health effects can be obtained by calling the Environmental Protection Agency's Safe Drinking Water Hotline (800-426-4791).

(2) The report must include the telephone number of the owner, operator, or designee of the community water system as a source of additional information concerning the report.

(3) In communities with a large proportion of non-English speaking residents, as determined by the Primacy Agency, the report must contain information in the appropriate language(s) regarding the importance of the report or contain a telephone number or address where such residents may contact the system to obtain a translated copy of the report or assistance in the appropriate language.

(4) The report must include information (e.g., time and place of regularly scheduled board meetings) about opportunities for public participation in decisions that may affect the quality of the water.

(5) The systems may include such additional information as they deem necessary for public education consistent with, and not detracting from, the purpose of the report.

(6) Systems required to comply with subpart S.

(i) Any ground water system that receives notice from the State of a significant deficiency or notice from a laboratory of a fecal indicator-positive ground water source sample that is not invalidated by the State under §141.402(d) must inform its customers of any significant deficiency that is uncorrected at the time of the next report or of any fecal indicator-positive ground water source sample in the next report. The system must continue to inform the public annually until the State determines that particular significant deficiency is corrected or the fecal contamination in the ground water source is addressed under §141.403(a). Each report must include the following elements.

(A) The nature of the particular significant deficiency or the source of the fecal contamination (if the source is known) and the date the significant deficiency was identified by the State or the dates of the fecal indicator-positive ground water source samples;

(B) If the fecal contamination in the ground water source has been addressed under §141.403(a) and the date of such action;

(C) For each significant deficiency or fecal contamination in the ground water source that has not been addressed under §141.403(a), the State-approved plan and schedule for correction, including interim measures, progress to date, and any interim measures completed; and

(D) If the system receives notice of a fecal indicator-positive ground water source sample that is not invalidated by the State under §141.402(d), the potential health effects using the health effects language of Appendix A of subpart O.

(ii) If directed by the State, a system with significant deficiencies that have been corrected before the next report is issued must inform its customers of the significant deficiency, how the deficiency was corrected, and the date of correction under paragraph (h)(6)(i) of this section.

(7) Systems required to comply with subpart Y. (i) Any system required to comply with the Level 1 assessment requirement or a Level 2 assessment requirement that is not due to an E. coli MCL violation must include in the report the text found in paragraph (h)(7)(i)(A) and paragraphs (h)(7)(i)(B) and (C) of this section as appropriate, filling in the blanks accordingly and the text found in paragraphs (h)(7)(i)(D)(1) and (2) of this section if appropriate.

(A) Coliforms are bacteria that are naturally present in the environment and are used as an indicator that other, potentially harmful, waterborne pathogens may be present or that a potential pathway exists through which contamination may enter the drinking water distribution system. We found coliforms indicating the need to look for potential problems in water treatment or distribution. When this occurs, we are required to conduct assessment(s) to identify problems and to correct any problems that were found during these assessments.

(B) During the past year we were required to conduct [INSERT NUMBER OF LEVEL 1ASSESSMENTS] Level 1 assessment(s). [INSERT NUMBER OF LEVEL 1 ASSESSMENTS] Level 1 assessment(s) were completed. In addition, we were required to take [INSERT NUMBER OF CORRECTIVE ACTIONS] corrective actions and we completed [INSERT NUMBER OF CORRECTIVE ACTIONS] of these actions.

(C) During the past year [INSERT NUMBER OF LEVEL 2 ASSESSMENTS] Level 2 assessments were required to be completed for our water system. [INSERT NUMBER OF LEVEL 2 ASSESSMENTS] Level 2 assessments were completed. In addition, we were required to take [INSERT NUMBER OF CORRECTIVE ACTIONS] corrective actions and we completed [INSERT NUMBER OF CORRECTIVE ACTIONS] of these actions.

(D) Any system that has failed to complete all the required assessments or correct all identified sanitary defects, is in violation of the treatment technique requirement and must also include one or both of the following statements, as appropriate:

(1) During the past year we failed to conduct all of the required assessment(s).

(2) During the past year we failed to correct all identified defects that were found during the assessment.

(ii) Any system required to conduct a Level 2 assessment due to anE. coliMCL violation must include in the report the text found in paragraphs (h)(7)(ii)(A) and (B) of this section, filling in the blanks accordingly and the text found in paragraphs (h)(7)(ii)(C)(1) and (2) of this section, if appropriate.

(A) E. coli are bacteria whose presence indicates that the water may be contaminated with human or animal wastes. Human pathogens in these wastes can cause short-term effects, such as diarrhea, cramps, nausea, headaches, or other symptoms. They may pose a greater health risk for infants, young children, the elderly, and people with severely compromised immune systems. We found E. coli bacteria, indicating the need to look for potential problems in water treatment or distribution. When this occurs, we are required to conduct assessment(s) to identify problems and to correct any problems that were found during these assessments.

(B) We were required to complete a Level 2 assessment because we found E. coli in our water system. In addition, we were required to take [INSERT NUMBER OF CORRECTIVE ACTIONS] corrective actions and we completed [INSERT NUMBER OF CORRECTIVE ACTIONS] of these actions.

(C) Any system that has failed to complete the required assessment or correct all identified sanitary defects, is in violation of the treatment technique requirement and must also include one or both of the following statements, as appropriate:

(1) We failed to conduct the required assessment.

(2) We failed to correct all sanitary defects that were identified during the assessment that we conducted.

(iii) If a system detects E. coli and has violated the E. coli MCL, in addition to completing the table as required in paragraph (d)(4) of this section, the system must include one or more of the following statements to describe any noncompliance, as applicable:

(A) We had an E. coli-positive repeat sample following a total coliform-positive routine sample.

(B) We had a total coliform-positive repeat sample following an E. coli-positive routine sample.

(D) We failed to test for E. coli when any repeat sample tests positive for total coliform.

(iv) If a system detects E. coli and has not violated the E. coli MCL, in addition to completing the table as required in paragraph (d)(4) of this section, the system may include a statement that explains that although they have detected E. coli, they are not in violation of the E. coli MCL.

§141.154 Required additional health information.

(a) All reports must prominently display the following language: Some people may be more vulnerable to contaminants in drinking water than the general population. Immuno-compromised persons such as persons with cancer undergoing chemotherapy, persons who have undergone organ transplants, people with HIV/AIDS or other immune system disorders, some elderly, and infants can be particularly at risk from infections. These people should seek advice about drinking water from their health care providers. EPA/CDC guidelines on appropriate means to lessen the risk of infection by Cryptosporidium and other microbial contaminants are available from the Safe Drinking Water Hotline (800-426-4791).

(b) Ending in the report due by July 1, 2001, a system which detects arsenic at levels above 0.025 mg/L, but below the 0.05 mg/L, and beginning in the report due by July 1, 2002, a system that detects arsenic above 0.005 mg/L and up to and including 0.010 mg/L:

(1) Must include in its report a short informational statement about arsenic, using language such as: While your drinking water meets EPA's standard for arsenic, it does contain low levels of arsenic. EPA's standard balances the current understanding of arsenic's possible health effects against the costs of removing arsenic from drinking water. EPA continues to research the health effects of low levels of arsenic, which is a mineral known to cause cancer in humans at high concentrations and is linked to other health effects such as skin damage and circulatory problems.

(2) May write its own educational statement, but only in consultation with the Primacy Agency.

(1) Must include a short informational statement about the impacts of nitrate on children using language such as: Nitrate in drinking water at levels above 10 ppm is a health risk for infants of less than six months of age. High nitrate levels in drinking water can cause blue baby syndrome. Nitrate levels may rise quickly for short periods of time because of rainfall or agricultural activity. If you are caring for an infant you should ask advice from your health care provider.

(2) May write its own educational statement, but only in consultation with the Primacy Agency.

(d) * * *

(2) A system may write its own educational statement, but only in consultation with the State.

* * * *

§141.155 Report delivery and recordkeeping.

(a) Except as provided in paragraph (g) of this section, each community water system must mail or otherwise directly deliver one copy of the report to each customer.

(b) The system must make a good faith effort to reach consumers who do not get water bills, using means recommended by the primacy agency. EPA expects that an adequate good faith effort will be tailored to the consumers who are served by the system but are not bill-paying customers, such as renters or workers. A good faith effort to reach consumers would include a mix of methods appropriate to the particular system such as: Posting the reports on the Internet; mailing to postal patrons in metropolitan areas; advertising the availability of the report in the news media; publication in a local newspaper; posting in public places such as cafeterias or lunch rooms of public buildings; delivery of multiple copies for distribution by single-biller customers such as apartment buildings or large private employers; delivery to community organizations.

(c) No later than the date the system is required to distribute the report to its customers, each community water system must mail a copy of the report to the primacy agency, followed within 3 months by a certification that the report has been distributed to customers, and that the information is correct and consistent with the compliance monitoring data previously submitted to the primacy agency.

* * * * *

(e) Each community water system must make its reports available to the public upon request.

(f) Each community water system serving 100,000 or more persons must post its current year's report to a publicly-accessible site on the Internet.

(g) The Governor of a State or his designee, or the Tribal Leader where the tribe has met the eligibility requirements contained in §142.72 for the purposes of waiving the mailing requirement, can waive the requirement of paragraph (a) of this section for community water systems serving fewer than 10,000 persons. In consultation with the tribal government, the Regional Administrator may waive the requirement of §141.155(a) in areas in Indian country where no tribe has been deemed eligible.

(1) * * *

(i) Publish the reports in one or more local newspapers serving the area in which the system is located;

* * * * *

(2) Systems serving 500 or fewer persons may forego the requirements of paragraphs (g)(1)(i) and (ii) of this section if they provide notice at least once per year to their customers by mail, door- to-door delivery or by posting in an appropriate location that the report is available upon request.

* * * * *

Appendix A to Subpart O to Part 141—Regulated Contaminants

Contaminant (units)	Traditional MCL in mg/L	To convert for CCR, multiply by	MCL in CCR units	MCLG	Major sources in drinking water	Health effects language
* * * * *	* * * * *	* * * * *	* * * * *	* * * * *	* * * * *	* * * * *
E. coli ‡	Routine and repeat samples are total coliform- positive and either is E. coli-positive or system fails to take repeat samples following E. coli-positive routine sample or system fails to analyze total coliformpositive repeat sample for E. coli.		Routine and repeat samples are total coliform- positive and either is E. coli-positive or system fails to take repeat samples following E. coli-positive routine sample or system fails to analyze total coliformpositive repeat sample for E. coli.	0	Human and animal fecal waste.	E. coli are bacteria whose presence indicates that the water may be contaminated with human or animal wastes. Human pathogens in these wastes can cause short-term effects, such as diarrhea, cramps, nausea, headaches, or other symptoms. They may pose a greater health risk for infants, young children, the elderly, and people with severely- compromised immune systems.
* * * * *	* * * * *	* * * * *	* * * * *	* * * * *	* * * * *	* * * * *
Arsenic (ppb)	¹0.010	1000	¹10.	¹0	Erosion of natural deposits; Runoff from orchards; Runoff from glass and electronics production wastes	Some people who drink water containing arsenic in excess of the MCL over many years could experience skin damage or problems with their circulatory system, and may have an increased risk of getting cancer.

§142.15 Reports by States.

* * * * *

(b) Each State which has primary enforcement responsibility shall submit annual reports to the Administrator on a schedule and in a format prescribed by the Administrator, consisting of the following information:

* * * * *

(2) A summary of the status of each variance and exemption currently in effect.

* * * * *

§142.16 Special primacy requirements.

* * * * *

(f) * * *

(1) Each State that has primary enforcement responsibility must adopt the requirements of 40 CFR part 141, subpart O no later than August 21, 2000. States must submit revised programs to EPA for approval using the procedures in §142.12(b) through (d).

* * * * *

(3) Each State that has primary enforcement responsibility must maintain a copy of the reports for a period of one year and the certifications obtained pursuant to 40 CFR 141.155(c) for a period of 5 years.

* * * * *

CWA Lead Based Paint Pb Clean Water SDWA SMS Essential SMS Trial SMS Advanced SMS Trial Enterprise SMS Premium r40CFR141 40 CFR 141 40 CFR 141 National primary drinking water regulations

2024-05-24T05:00:00Z

EPA Final Rule: New Hampshire Asbestos Management and Control

The Environmental Protection Agency (EPA) is granting the New Hampshire Department of Environmental Services (NH DES) the authority to implement and enforce the state's amended Asbestos Disposal Site Rule in place of the National Emission Standard for Asbestos provisions for inactive waste disposal sites. NH DES's amended rule applies to all inactive waste disposal sites that ceased operation on or before July 9, 1981. This approval makes the NH DES amended Asbestos Disposal Site Rule federally enforceable. This action is being taken under the Clean Air Act (CAA).

DATES: This rule is effective on June 24, 2024, published in the Federal Register May 24, 2024, page 45770.

§61.04 Address.
(c)(1)(i)	Revised	View text
§61.18 Incorporations by reference.
(e)(1)	Revised	View text
§63.14 Incorporations by reference.
(n)(6)(i)	Revised	View text
§63.99 Delegated Federal authorities.
(a)(30)(iii)	Revised	View text

Previous Text

§61.04 Address.

* * * * *

(i) Inactive waste disposal sites not operated after July 9, 1981 within the state of New Hampshire must comply with the New Hampshire Regulations at Env-Sw 2100: Management and Control of Asbestos Disposal Sites Not Operated after July 9, 1981, effective February 16, 2010 (incorporated by reference, see §61.18).

* * * * *

§61.18 Incorporations by reference.

* * * * *

(e) * * * *

(1)(i) New Hampshire Regulations at Env-Sw 2100, Management and Control of Asbestos Disposal Sites Not Operated after July 9, 1981, effective February 16, 2010 (including a letter from Thomas S. Burack, Commissioner, Department of Environmental Services, State of New Hampshire, to Carol J. Holahan, Director, Office of Legislative Services, dated February 12, 2010, certifying that the enclosed rule, Env-Sw 2100, is the official version of this rule). Incorporation By Reference approved for §61.04(c).

* * * * *

§63.14 Incorporations by reference.

* * * * *

(n) * * *

(6)(i) New Hampshire Regulations at Env-Sw 2100, Management and Control of Asbestos Disposal Sites Not Operated after July 9, 1981, effective February 16, 2010 (including a letter from Thomas S. Burack, Commissioner, Department of Environmental Services, State of New Hampshire, to Carol J. Holahan, Director, Office of Legislative Services, dated February 12, 2010, certifying that the enclosed rule, Env-Sw 2100, is the official version of this rule), IBR approved for §63.99(a).

* * * * *

§63.99 Delegated Federal authorities.

* * * * *

(a) * * *

(30) * * *

(iii) Affected inactive waste disposal sites not operated after July 9, 1981 within New Hampshire must comply with New Hampshire Regulations Chapter Env-Sw 2100: Management and Control of Asbestos Disposal Sites Not Operated after July 9, 1981, effective February 16, 2010 (incorporated by reference, see §63.14) as described in paragraph (a)(30)(iii)(A) of this section:

(A) The material incorporated by reference from Chapter Env-Sw 2100, Management and Control of Asbestos Disposal Sites Not Operated after July 9, 1981, pertains to inactive waste disposal sites not operated after July 9, 1981 in the State of New Hampshire's jurisdiction, and has been approved under the procedures in §63.93 to be implemented and enforced in place of the Federal NESHAPs for Inactive Waste Disposal Sites (40 CFR 61.151).

(B) [Reserved]

* * * * *

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2024-05-23T05:00:00Z

SPCC rule: Is your aboveground storage tank covered?

It may not be worth crying over spilled milk, but spilled oil is a different story, especially if it reaches national waters. The Spill Prevention, Control, and Countermeasure (SPCC) rule requires certain facilities with aboveground storage tanks that contain oil to prepare and implement spill prevention and control measures.

A facility with an aboveground storage tank (AST) that contains any oil in any form (such as petroleum, fuel oil, sludge, vegetable oils, and synthetic oils) may be subject to the SPCC regulations. Covered facilities must take certain preventive actions and develop and apply an SPCC Plan.

Is your AST covered by the SPCC rule? Let’s find out.

First, keep this in mind.

The regulations may apply to your ASTs, even if you don’t see the specific term. The SPCC regulations at 40 CFR Part 112 don’t always use “ASTs.” Under the rule, ASTs include:

Bulk storage containers,
Bunkered tanks, and
Partially buried tanks.

To ensure you don’t miss relevant regulations, evaluate the rule’s definitions for each type of AST to determine whether they apply.

What facilities does the SPCC rule cover?

The SPCC rule covers facilities that:

Are non-transportation-related (i.e., facilities that store, process, refine, use, or consume oil);
Are engaged in drilling, producing, gathering, storing, processing, refining, transferring, distributing, using, or consuming oil;
Could be reasonably expected to discharge oil in quantities that may be harmful into navigable waters or adjoining shorelines; and
Have a total aggregate capacity of either aboveground oil storage greater than 1,320 gallons or completely buried storage tanks greater than 42,000 gallons in containers of 55 gallons or more.

If your facility meets the criteria and has a combined capacity of 1,320 gallons or more of oil in ASTs with capacities of 55 gallons or more, the SPCC rule applies.

Tips for determining applicability

“Navigable waters” refer to waters of the United States as defined at 120.2.
Oil discharges that may be considered harmful are defined at 110.3.
Each facility must determine the potential for a discharge since the SPCC rule doesn’t define “reasonably be expected."
Per 40 CFR 112.1(d)(1)(i), the determination of whether your facility could reasonably be expected to discharge potentially harmful amounts of oil into navigable waters must be based solely on geographical and location aspects of the facility. You may not account for man-made features (like equipment or structures) that could prevent or contain a discharge.
When calculating the total number of gallons of oil in your ASTs, don’t count aboveground containers with less than 55 gallons of storage capacity.

Is your facility considered a qualified facility?

Some facilities are eligible for streamlined requirements under the SPCC rule. These “qualified facilities” can prepare and self-certify their SPCC Plans instead of having them reviewed and certified by a professional engineer.

To qualify, your facility must:

Have a total aboveground oil storage capacity of 10,000 gallons or less; and
Over the previous three years, have no:
- One discharge of oil greater than 1,000 gallons into navigable waters or adjoining shorelines, or
- Two discharges of 42 gallons or more of oil into navigable waters or adjoining shorelines within any 12-month period.

Eligible facilities must determine the type of qualified facility that applies.

If your facility has no aboveground oil containers greater than 5,000 gallons, it’s a Tier I Qualified Facility. You may complete and self-certify the SPCC Plan template (Appendix G to Part 112).
If your facility has at least one aboveground oil container greater than 5,000 gallons, it’s a Tier II Qualified Facility. You may complete and self-certify the SPCC Plan per the requirements at 112.7 and either Subpart B or Subpart C of Part 112.

Key to remember: If your facility has an aboveground storage tank that holds any kind of oil, it may be subject to the Spill Prevention, Control, and Countermeasure rule.

2024-05-17T05:00:00Z

EPA Final Rule: Additions to Toxics Release Inventory

The Environmental Protection Agency (EPA) is updating the list of chemicals subject to toxic chemical release reporting under the Emergency Planning and Community Right-to-Know Act (EPCRA) and the Pollution Prevention Act (PPA). Specifically, this action updates the regulations to identify seven per- and polyfluoroalkyl substances (PFAS) that must be reported pursuant to the National Defense Authorization Act for Fiscal Year 2020 (FY2020 NDAA) enacted on December 20, 2019. As this action is being taken to conform the regulations to a Congressional legislative mandate, notice and comment rulemaking is unnecessary.

DATES: This final rule is effective June 17, 2024, published in the Federal Register May 17, 2024, page 43331.

View final rule.

§372.65 Chemicals and chemical categories to which this part applies.
(d) Table 4: Entries for “Ammonium perfluorohexanoate”; “Betaines, dimethyl(γ-ω-perfluoro-γ-hydro-C8-18-alkyl)”; “Lithium bis[(trifluoromethyl)sulfonyl] azanide”; “Perfluorohexanoic acid”; “Perfluoropropanoic acid”; “Sodium perfluorohexanoate”; and “1,1,1-Trifluoro-N-[(trifluoromethyl)sulfonyl] methanesulfonamide”; and note to the end of the table	Added	View text
(e) Table 5: Entries for “307-24-4”; “422-64-0”; “2923-26-4”; “21615-47-4”; “82113-65-3”; “90076-65-6”; and “2816091-53-7”; and	Revised	View text

Previous Text

§372.65 Chemicals and chemical categories to which this part applies.

* * * *

(d)

* * * *

Table 4 to Paragraph (d)

* * * *

CAS No.

(e)

* * * *

Table 4 to Paragraph (d)

* * * *

CAS No.

Most Recent Highlights In Human Resources

2024-05-16T05:00:00Z

EPA Final Rule: Missouri: Final Approval of State Underground Storage Tank Program Revisions

Pursuant to the Resource Conservation and Recovery Act (RCRA or Act), the Environmental Protection Agency (EPA) is taking direct final action to approve revisions to the State of Missouri's Underground Storage Tank (UST) program submitted by the Missouri Department of Natural Resources (MDNR). This action also codifies EPA's approval of Missouri's State program and incorporates by reference those provisions of the State regulations that we have determined meet the requirements for approval. The provisions will be subject to EPA's inspection and enforcement authorities under RCRA and other applicable statutory and regulatory provisions.

DATES: This rule is effective July 16, 2024, unless EPA receives adverse comment by June 17, 2024, published in the Federal Register May 17, 2024, page 43322.

View final rule.

§282.75 Missouri State-Administered Program.
Entire section	Added	View text
Appendix A to Part 282—State Requirements Incorporated by Reference in Part 282 of the Code of Federal Regulations
Entry for “Missouri”	Added	View text

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2024-05-16T05:00:00Z

EPA Final Rule: New Source Performance Standards for the Synthetic Organic Chemical Manufacturing Industry and National Emission Standards for Hazardous Air Pollutants

This action finalizes amendments to the New Source Performance Standards (NSPS) that apply to the Synthetic Organic Chemical Manufacturing Industry (SOCMI) and amendments to the National Emission Standards for Hazardous Air Pollutants (NESHAP) that apply to the SOCMI (more commonly referred to as the Hazardous Organic NESHAP or HON) and Group I and II Polymers and Resins (P&R I and P&R II, respectively) Industries. The EPA is finalizing decisions resulting from the Agency’s technology review of the HON and the P&R I and P&R II NESHAP, and its review of the NSPS that apply to the SOCMI. The EPA is also finalizing amendments to the NSPS for equipment leaks of volatile organic compounds (VOC) in SOCMI based on its reconsideration of certain issues raised in an administrative petition for reconsideration. Furthermore, the EPA is finalizing emission standards for ethylene oxide (EtO) emissions and chloroprene emissions after considering the results of a risk assessment for the HON and for Neoprene Production processes subject to the P&R I NESHAP, and is finalizing a fenceline monitoring work practice standard for certain hazardous air pollutants (HAP). Lastly, the EPA is finalizing the removal of exemptions from standards for periods of startup, shutdown, and malfunction (SSM), adding work practice standards for such periods where appropriate, finalizing standards for previously unregulated HAP, and adding provisions for electronic reporting of performance test reports and periodic reports.

DATES: This final rule is effective on July 15, 2024, published in the Federal Register May 16, 2024, page 42932.

View final rule.

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2024-05-16T05:00:00Z

Protecting yourself all season — All masks are not created equal!

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.

Which mask is best?

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:

N95— deemed more effective than surgical masks, N95 masks are the most common type of particulate filtering facepiece respirator. The “95” represents the 95% of airborne particles that are filtered out, which means that don’t entirely block the transmission of some viruses. These masks require fit testing to ensure proper protection.
KN95 — “KN” is a designation given by China as an indicator of effectiveness; though the designation is not as stringent as with N95 masks and therefore don’t qualify as N95s. These can be quickly identified by the ear loops versus the dual straps required on N95s.
Surgical — meant to protect from droplets and sprays, surgical masks filter large particles from the air when the wearer inhales. However, these disposable masks tend to be loose-fitting which could reduce their efficiency to lower than that of N95 masks.
Cloth— usually homemade, these masks offer limited protection from infection, especially persistent ones like COVID-19. Cloth masks are machine-washable and reusable, but they do fit more loosely especially near the nose, cheeks, and jawline, which reduces their effectiveness. Homemade masks create inconsistent and unknown protection levels, so are not recommended for sufficient defense against viruses or other infectious particles.
Other protections — scarfs, gators, and other protections have been used as an attempt to protect from contagious infections. Intended to trap respiratory droplets, these “masks” must be used in layers to have the same effectiveness as a mask, so are not the best option.

Overcoming the negatives of wearing a mask

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:

Selecting the most protective, yet comfortable mask for the expected exposure type.
Ensuring the mask is fit properly (around the face with no gaps around the edges) to help with air flow.
Using masks with bendable nose strips for efficacy and comfort.
Securing both straps around the ears to ensure optimal protection and prevent constant slippage.
Acclimating to mask use by wearing one for short periods initially and building up to longer durations.
Remaining aware of temperature extremes and humidity when required to wear masks.
Keeping your respiratory system fit and healthy so masks don’t seem like a barrier to normal breathing.

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.

Warehousing Utilities Hospitality Personal Services Repair Services Retail Food Services Healthcare Manufacturing (33/Durable)Mining Waste Management Manufacturing (31/Food/Textiles)Transportation Wholesale Distribution Professional Services Entertainment Manufacturing (32/Non-Durable)Public Administration Financial/Insurance Company Management Communications Agriculture Real Estate Commercial Services Education Postal/Courier Services General Services Construction Head Protection Tenosynovitis SAR Gas Mask Hand Protection Hearing Protection Eye Protection Suppilied-Air Respirators Metatarsal Guards Lung Protection HPD PPE Safety Glasses Toe Protection Face Protection Ear Protection Trigger Finger Tendinitis Hearing Protective Device Safety Boots Coronavirus Disease Self-Contained Breathing Apparatus Foot Protection Splash Goggles Earmuffs Respirator Mask Wrist Protection Carpal Tunnel Syndrome Musculoskeletal Disorders (MSDs)Canal Caps Face Shields Earplugs Safety Shoes Raynaud's Syndrome SCBA High Visibility Clothing Bump Cap DeQuervain's Disease Finger Protection Safety Gloves MSD Feet Protection

2024-05-15T05:00:00Z

EPA Final Rule: South Dakota: Final Approval of State Underground Storage Tank Program Revisions

The State of South Dakota Department of Agriculture and Natural Resources (DANR) has applied to the EPA for final approval of the changes to its Underground Storage Tank (UST) program under the Resource Conservation and Recovery Act (RCRA). The EPA has reviewed South Dakota's application and determined that South Dakota's UST program revisions satisfy all requirements needed for program approval. This action also codifies the EPA's approval of South Dakota's State program and incorporates by reference those provisions of the State's regulations that we have determined meet the requirements for approval.

DATES: This rule is effective on July 15, 2024 unless EPA receives adverse written comment by June 14, 2024, published in the Federal Register May 15, 2024, page 42390.

View final rule.

§282.91 South Dakota State-Administered Program.
Entire section	Revised	View text
Appendix A to Part 282—State Requirements Incorporated by Reference in Part 282 of the Code of Federal Regulations
Entry for “South Dakota”	Revised	View text

Previous Text

§282.91 South Dakota State-Administered Program.

(a) The State of South Dakota is approved to administer and enforce an underground storage tank program in lieu of the federal program under Subtitle I of the Resource Conservation and Recovery Act of 1976 (RCRA), as amended, 42 U.S.C. 6991 et seq. The State's program, as administered by the South Dakota Department of Environment and Natural Resources, was approved by EPA pursuant to 42 U.S.C. 6991c and part 281 of this chapter. EPA approved the South Dakota program on March 16, 1995 and it was effective on May 15, 1995.

(b) South Dakota has primary responsibility for enforcing its underground storage tank program. However, EPA retains the authority to exercise its inspection and enforcement authorities under sections 9005 and 9006 of subtitle I of RCRA, 42 U.S.C. 6991d and 6991e, as well as under other statutory and regulatory provisions.

(c) To retain program approval, South Dakota must revise its approved program to adopt new changes to the federal subtitle I program which make it more stringent, in accordance with section 9004 of RCRA, 42 U.S.C. 6991c, and 40 CFR part 281, subpart E. If South Dakota obtains approval for the revised requirements pursuant to section 9004 of RCRA, 42 U.S.C. 6991c, the newly approved statutory and regulatory provisions will be added to this subpart and notice of any change will be published in the Federal Register.

(d) South Dakota has final approval for the following elements submitted to EPA in South Dakota's program application for final approval and approved by EPA on [insert date of publication]. Copies may be obtained from the Underground Storage Tank Program, South Dakota Department of Environment and Natural Resources, 523 East Capitol, Pierre, South Dakota 57501.

(1) State statutes and regulations. (i) The provisions cited in this paragraph are incorporated by reference as part of the underground storage tank program under subtitle I of RCRA, 42 U.S.C. 6991 et seq.

(A) South Dakota Statutory Requirements Applicable to the Underground Storage Tank Program, 1995.

(B) South Dakota Regulatory Requirements Applicable to the Underground Storage Tank Program, 1995.

(ii) The following statutes are part of the approved state program, although not incorporated by reference herein for enforcement purposes.

(A) The statutory provisions include: South Dakota Codified Law, Water Pollution Control, Chapter 34A-2, Sections 46 and 48, Sections 72 through 75, Chapters 34A-10 and 34A-12.

(iii) The following statutory provisions are broader in scope than the federal program, are not part of the approved program, and are not incorporated by reference herein for enforcement purposes.

(A) South Dakota statutes Annotated, Chapter 34A-2, Section 100, insofar as it applies to above ground stationary storage tanks, Section 102, insofar as it applies to installation of above ground stationary storage tanks, Section 101, insofar as it applies to corrective action for above ground stationary storage tanks.

(2) Statement of legal authority. (i) "Attorney General's Statement for Final Approval", signed by the Attorney General of South Dakota on June 17, 1992, though not incorporated by reference, is referenced as part of the approved underground storage tank program under Subtitle I of RCRA, 42 U.S.C. 6991 et seq.

(ii) Letter from the Attorney General of South Dakota to EPA, June 17, 1992, though not incorporated by reference, is referenced as part of the approved underground storage tank program under Subtitle I of RCRA, 42 U.S.C. 6991 et seq.

(3) Demonstration of procedures for adequate enforcement. The "Demonstration of Procedures for Adequate Enforcement" submitted as part of the complete application in October 1993, though not incorporated by reference, is referenced as part of the approved underground storage tank program under subtitle I of RCRA, 42 U.S.C. 6991 et seq.

(4) Program Description. The program description and any other material submitted as part of the original application in June 1992, though not incorporated by reference, are referenced as part of the approved underground storage tank program under Subtitle I of RCRA, 42 U.S.C. 6991 et seq.

(5) Memorandum of Agreement. The Memorandum of Agreement between EPA Region VIII and the South Dakota Department of Environment and Natural Resources, signed by the EPA Regional Administrator on February 23, 1995, though not incorporated by reference, is referenced as part of the approved underground storage tank program under Subtitle I of RCRA, 42 U.S.C. 6991 et seq.

Appendix A to Part 282—State Requirements Incorporated by Reference in Part 282 of the Code of Federal Regulations

* * * *

South Dakota

(a) The statutory provisions include South Dakota Statutes Annotated, Chapter 34A-2, Sections 98 and 99. Underground Storage Tanks:

Section 98 Underground storage tanks-Definitions. Section 99 Underground storage tanks-Adoption of Rules-Violation.

(b) The regulatory provisions include State of South Dakota Administrative Rules, Chapter 74:03:28, Underground Storage Tanks, Department of Environment and Natural Resources, June 24, 1992:

Section 74:03:28:01 Definitions.

Section 74:03:28:02 Performance standards for new UST systems-General requirements.

Section 74:03:28:03 Upgrading of existing UST systems-General requirements and deadlines.

Section 74:03:28:04 Notification requirements for UST systems.

Section 74:03:28:05 Spill and overfill control.

Section 74:03:28:06 Operation and maintenance of cathodic protection.

Section 74:03:28:07 Compatibility.

Section 74:03:28:08 Repairs allowed-general requirements.

Section 74:03:28:09 Maintenance and availability of records.

Section 74:03:28:10 Release detection for all UST systems-general requirements and deadlines.

Section 74:03:28:11 Release detection requirements for petroleum UST systems.

Section 74:03:28:12 Release detection requirements for pressure piping.

Section 74:03:28:13 Recordkeeping.

Section 74:03:28:14 Release notification plan.

Section 74:03:28:15 Reported of suspected releases.

Section 74:03:28:16 Release investigation and confirmation.

Section 74:03:28:17 Off-site impacts and source investigation.

Section 74:03:28:18 General requirements for corrective action for releases from UST systems.

Section 74:03:28:19 Initial abatement requirements and procedures for releases from UST systems.

Section 74:03:28:20 Free product removal.

Section 74:03:28:21 Additional site investigation for releases from UST systems.

Section 74:03:28:22 Soil and groundwater cleanup for releases from UST systems.

Section 74:03:28:23 Reporting of releases from UST systems.

Section 74:03:28:28 Reporting of hazardous substance releases from UST systems.

Section 74:03:28:29 Temporary removal from use.

Section 74:03:28:30 Temporary closure.

Section 74:03:28:31 Permanent closure.

Section 74:03:28:32 Postclosure requirements.

Section 74:03:29:01 Applicability.

Section 74:03:29:23 Definitions.

Section 74:03:29:24 Financial responsibility rules.

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2021-12-27T06:00:00Z

86 FR 73131 Revisions to the Unregulated Contaminant Monitoring Rule (UCMR 5) for Public Water Systems and Announcement of Public Meetings

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.

Exhibit 1—Estimated Average Annual Costs of UCMR 5 ¹
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.

Exhibit 3—Key Elements of Final UCMR 5
Number	Title
CFR rule section		Description of section	Corresponding preamble section
Number	Title	Description of section	Corresponding preamble section
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.

Exhibit 4—UCMR 5 Analytes

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.

Exhibit 5—Systems Expected To Participate in UCMR 5 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
System size (number of people served)	List 1 chemicals	Total number of systems per size category
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.

Exhibit 6—Number of Publicly- and Privately-Owned Small Systems Subject to UCMR 5 ¹
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.

Exhibit 7—UCMR 5 Relative Cost Analysis for Small Publicly-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

Exhibit 8—UCMR 5 Relative Cost Analysis for Small 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 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). * * *

* * * * *

(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.

Table 1 to Paragraph (e)—Unregulated Contaminant Monitoring Reporting Requirements
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):

Table 1 to Paragraph(a)(3)—UCMR Contaminant List
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.

Table 2 to Paragraph ( )(4)( )(B)—Monitoring Frequency by Contaminant and Water Source Types
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

SDWA Clean Water CWA SMS Advanced SMS Premium SMS Essential SMS Trial SMS Trial Enterprise r40CFR141.35 r40CFR141.40 40 CFR 141.35 40 CFR 141.40 40 CFR 141.35 Reporting for unregulated contaminant monitoring results.40 CFR 141.40 Monitoring requirements for unregulated contaminants.

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2023-06-16T05:00:00Z

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

Quick action using cardiopulmonary resuscitation (CPR) and automated external defibrillators(AEDs) can save the lives of the nearly 350,000 cardiac event victims each year outside of a hospital setting. But what does OSHA require for the workplace? What you didn’t know about OSHA regulations regarding AEDs may surprise you.

The importance of CPR and early defibrillation

For every minute a patient is in cardiac arrest, their chances of survival decrease dramatically. When a patient doesn’t have a pulse and isn’t breathing, CPR should be performed until an AED is available. It’s important to note that CPR alone does not restart the heart. CPR is an oxygen circulation procedure. AEDs, on the other hand, are meant for lifesaving intervention.

CPR and early defibrillation are vital components of the emergency medical services (EMS) chain of survival that increases the odds of cardiac patient survival. However, according to the American Heart Association (AHA), even the best CPR can’t provide enough circulation of oxygen to the brain and heart for more than a few minutes. In fact, a patient whose brain is deprived of oxygen for 10 minutes or more seldom recovers.

Signs and symptoms of cardiac compromise

Just like a reliable vehicle, the circulatory system is the human body’s blood transportation system, and the heart is the engine. Amazingly, the heart generates its own electrical impulses, pumping in a regular, rhythmic manner. As with any engine, the heart requires a certain amount of pressure to function and doesn’t work well when clogged with grease or debris. The most common causes of sudden cardiac arrest include a heart attack, electrocution, and asphyxiation — all of which could occur in the workplace. Common signs and symptoms include:

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

CPR provides the pressure for the body’s “engine” to oxygen circulating, while an AED provides the electrical impulses to keep the engine pumping.

OSHA requirements regarding CPR

OSHA 1910.151 requires first aid treatment be provided in the absence of an infirmary, clinic, or hospital in near proximity to the workplace used to treat injured employees. This may include assisting a victim of cardiac arrest using CPR or defibrillation.

OSHA requirements for CPR and defibrillation differ considerably. Standards requiring CPR include:

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

OSHA recommends basic adult CPR refresher training and retesting every year, and first aid training at least once every three years. CPR training include facilitated discussion along with ’hands-on’ skills training that uses mannequins and partner practice.

OSHA requirements regarding AEDs — you might need a prescription

Though OSHA recognizes AEDs as important lifesaving technology that plays a role in treating cardiac arrest, the agency doesn’t currently require their use in the workplace. Instead, OSHA wants employers to assess their own requirements for AEDs as part of their first aid response.

AEDs are considered Class III medical devices which means the Food and Drug Administration (FDA) has some oversight on their use. Almost all AEDs require the purchaser to obtain a prescription from a physician under FDA regulations. The prescription process is meant as a quality control mechanism to ensure AEDs are properly maintained, that all designated responders are properly trained, and assist employers with establishing an emergency response plan for their workplace AED program.

The AHA requires AED operators to also receive CPR training as an “integral part of providing lifesaving aid to people suffering sudden cardiac arrest.” Though easy to use, each AED is slightly different, so training helps users understand the unique traits and supplies for the individual units at their workplace. Additionally, AED users must be trained to understand the signs of a sudden cardiac arrest, when to activate the EMS system, and how to perform CPR.

AEDs are light, portable, easy to use, and inexpensive. They’re best placed near high-hazard areas such as confined spaces, near electrical energy, or in remote work areas. Response time to reach AEDs should be kept within 3–5-minutes.

Need more information on defibrillators in the workplace? See our ezExplanation on AEDs.

Training requirements

Many states require or encourage CPR and AED training from nationally recognized organizations. Any AED training should include CPR training. OSHA doesn’t offer first aid or CPR training, nor certify trainers. Training by a nationally recognized organization, such as AHA, the American Red Cross, or National Safety Council is recommended.

Keys to Remember

While OSHA doesn’t currently require the use of AEDs in the workplace, they do expect employers to assess their own AED requirements as part of their first aid response. AED training is required by most states and should include CPR with a hands-on practical component.

Mining Transportation Utilities Manufacturing (32/Non-Durable)Wholesale Distribution Commercial Services Public Administration Real Estate Waste Management Healthcare Food Services Communications Financial/Insurance Hospitality Retail Repair Services Construction Warehousing General Services Manufacturing (31/Food/Textiles)Company Management Professional Services Personal Services Postal/Courier Services Manufacturing (33/Durable)Education Agriculture Entertainment Stroke Anaphylaxis Trauma Stop Bleeding Burns Injuries Unconscious Abdominal Thrusts Heart Attack Seizures Muscle Strain Diabetes Emergency Responders Fractures Second-Degree Burn Broken Bones Third-Degree Burn Cardiac Arrest Joint Strain Insulin Sprains Emergency Kit Glucose Monitors Ambulance Bandages Diabetic Emergencies Tourniquet Stress Fracture EpiPen ERT Splint Unconsciousness Emergency Response Team Bacteria Cardiopulmonary Resuscitation Blood Sugar Monitor Emergency Medical Services Infection 911 Compression Bandage/Wrap EMS Allergies Shock Auto-Injector First Response Head Injury First Responder Muscle Sprain Joint Sprain Cold Compress/Pack Heimlich Maneuver Non-Responsive Strains Choking Emergency Supplies Bone Fracture Medical Services Virus CPR Warm Compress/Pack Medicine Autoinjector Chest Compressions Concussion Epi-Pen

2023-04-06T05:00:00Z

Giving truck drivers rights to your restrooms

OSHA requires employers to provide all workers with immediately available and sanitary restroom or toilet facilities. But does this include truckers and delivery drivers that stop at your facilities? The sanitation standards (1910.141, 1926.51, and 1928.110) are meant to protect all workers from adverse health effects from unsanitary toilets facilities, or the unavailability of facilities when needed.

Proposed legislation

Bipartisan legislation has recently been introduced in the House that would require businesses to provide restroom access to truckers who are loading or delivering cargo at their warehouses, manufacturers, distribution centers, retailers, and ports.

Supported by leading organizations in the trucking industry, the Trucker Bathroom Access Act (H.R. 9592) was introduced on Dec. 15, 2022. The bill requires retailers, warehouses, and other establishments with existing restrooms to provide access to drivers who are loading or delivering cargo. Additionally, operators of ports and marine terminals must provide access for drayage and parking while accessing such restrooms.

This amendment to Title 49 would exempt some employers from the bill including filling and service stations, and restaurants 800-square feet or smaller with restrooms intended for employee use only. The bill doesn’t require employers to construct new restrooms but to give truck drivers the same access as employees or customers.

Your restroom availability affects their health

Commercial truckers and delivery drivers are the lifeline of our supply chain of supplies, products, and consumables. Working tirelessly all hours, during holidays and weekends, and throughout the pandemic, they continue to deliver critical food and emergency supplies to companies everywhere. Employers have the privilege of demonstrating gratitude to truckers and delivery drivers with a positive work environment.

The benefits of allowing truckers and delivery drivers the convenience and safety of readily available, sanitary restroom facilities are plenty. They’re able to rest and reset when necessary, which keeps them and others safer on the roads. Equally important, restroom availability prevents drivers from having to search for available facilities elsewhere, allowing them to keep a timely delivery schedule, limit supply chain delays, and ultimately lower costs for employers and customers.

Keys to remember

The proposed Trucker Bathroom Access Act will require retailers, warehouses, and other establishments with existing restrooms to provide access to truckers and delivery drivers who are loading or delivering cargo. Access to restrooms keeps them refreshed and ready to deliver essential supplies to companies across the country.

EHS Monthly Round Up - January 2024

In this monthly video, we'll review the most impactful environmental, health, and safety news.

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!

2023-06-16T05:00:00Z

Do I need a first responder or someone first aid trained?

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?

What does the standard require?

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.

First aid trained or first responder?

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.

What’s considered “near proximity”?

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.

Training requirements

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.

Keys to remember

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.

Mining Transportation Utilities Manufacturing (32/Non-Durable)Wholesale Distribution Commercial Services Public Administration Real Estate Waste Management Healthcare Food Services Communications Financial/Insurance Hospitality Retail Repair Services Construction Warehousing General Services Manufacturing (31/Food/Textiles)Company Management Professional Services Personal Services Postal/Courier Services Manufacturing (33/Durable)Education Agriculture Entertainment Third-Degree Burn Medical Services Diabetes Ambulance Bandages Shock Concussion Anaphylaxis Stroke Auto-Injector Emergency Responders First Responder Seizures EMS Unconsciousness Chest Compressions Choking First Response Emergency Kit Emergency Response Team Insulin Heimlich Maneuver Blood Sugar Monitor Glucose Monitors Joint Sprain Second-Degree Burn Cardiac Arrest Broken Bones Injuries Fractures Autoinjector Warm Compress/Pack Splint Joint Strain Emergency Supplies Infection Bone Fracture Sprains Head Injury Virus Diabetic Emergencies Burns Cardiopulmonary Resuscitation Cold Compress/Pack CPR Unconscious ERT Medicine Stress Fracture Trauma Allergies 911 Epi-Pen Compression Bandage/Wrap Strains Stop Bleeding Tourniquet Abdominal Thrusts Non-Responsive Emergency Medical Services EpiPen Bacteria Heart Attack Muscle Strain Muscle Sprain

2023-10-10T05:00:00Z

Do your safety signs have your employees seeing red?

Safety has the workforce brimming with color. In fact, 29 CFR 1910.144 and 1910.145 tell us precisely what OSHA expects for safety color coding to identify hazards in the workplace. Signs, warning labels, symbols, and other color coding in your facilities should have your employees seeing red. But what if they can’t?

Though rare, color blindness is the inability to distinguish between colors as most people do. This makes it difficult for workers to see colors intended to protect them from harm. Color blindness can vary, making it difficult to distinguish between red and green or blue and yellow hues - the very shades of safety.

Some individuals can’t see any colors, which is called monochromacy. Workers with this type of color blindness may have trouble seeing clearly and may be more sensitive to light. Employers must collaborate with these employees to ensure alternative measures are taken to protect their eyes and clearly communicate warnings and hazards.

The colors of safety

The color identifiers below differentiate the various levels of risk and hazards for workplace safety. Employers must ensure workers with color blindness are able to understand hazards in the workplace and the meaning of signs and warning labels.

RED - identifies fire and fire protective apparatus, danger, and emergency stops. It marks areas near open flames or flammable materials, fire extinguishers, and where workers are directed to stop an action.

ORANGE - warns workers of hazardous parts of equipment that could physically harm people or the facility. Typically used as labels on machinery, orange may also be used on signs, hard hats, safety vests, and other objects.

YELLOW - designates caution and is used for marking physical hazards, such as falling, pinch points, contact hazards, and other similar hazards.

GREEN - identifies directional safety information. This includes pointing workers to emergency egresses, safety showers or eyewash stations, first aid stations, and other safety equipment.

BLUE - not always safety-related, provides information regarding a particular location, process, or item. Employers may use blue signs to convey workplace policies, instructions, or locations, such as “Employees Only.”

PURPLE - often combined with yellow, alerts workers to radiation hazards.

BLACK/WHITE - provides instructional and directional information. This includes speed limits, one-way traffic, and aisle markings.

Having a standardized color-coding system for safety is effective for alerting employees of workplace hazards - if they can see the colors properly. For those who can’t, employers must ensure these workers understand the hazards and warning signs throughout the workplace.

Interested in learning more? See our ezExplanation on Color Coding.

Are you contributing to color blindness?

Not only are employers required to ensure workers understand warning signs and colors, but they must also protect workers from becoming color blind. That’s right - color blindness can be acquired. Exposure to lead or carbon disulfide can cause color blindness, even at low levels. Terminal illness and alcohol consumption can also contribute to color blindness, so employers should promote health as part of their safety and health programs.

What does ADA have to say?

Color blindness is considered a disability according to the Americans with Disabilities Act (ADA). Employers are required to reasonably accommodate employees with disabilities.

Keys to remember

Employers must ensure employees with color blindness are able to understand hazards in the workplace and the meaning of signs and warning labels. The ADA requires employers to make reasonable accommodations for workers with disabilities, including color blindness.

2023-05-24T05:00:00Z

The ultimate guide to building your spill kit

Here at J.J. Keller we often say it is not IF a spill will occur but WHEN. You might be compliant with all the relevant regulations and a spill may still occur. You need to be ready to respond safely and efficiently no matter your industry. Building a spill kit will ensure that you are prepared to contain the spill. This will limit the safety and environmental hazards you may encounter related to spill incidents.

Regulatory requirements

There are both OSHA and EPA requirements related to preventing and responding to spills, but it is important to note that the regulations do not require specific materials or quantities for a spill kit. OSHA provides guidance for worksites to have industry-standard programs in place for managing and disposing of hazardous waste including spills. And spills kits are a best practice under EPA’s Spill Prevention Countermeasures and Control rule. OSHA’s guidance requires training for employees who handle and control hazardous waste. They must also have the appropriate personal protective equipment and be trained to properly operate any equipment used in spill response and containment.

Types of spill kits

Spill kit materials are designed for certain materials. Some of the main types of spill kits include:

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

What to include in the spill kit?

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

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

Although spill kits are designed for certain spills, they should all contain a few fundamental pieces. These are your Personal Protective Equipment (PPE), sorbents, and clean-up items. PPE commonly used in spill response includes gloves, shoe covers, face, and eye protection. Chemical spill kits should also include a lab coat, respiratory protection, and a corrosive resistant apron. Absorbents are materials that absorb and contain a spill. This includes cloths, mops, sorbent socks, loose powders, etc. Clean-up equipment includes a dustpan or rubber shovel and containment bags for used PPE. Often the materials come in a container that is large enough to contain the potential spill.

A rule of thumb in the industry is that an appropriately sized spill kit is generally good for spills of approximately 100 gallons. For larger spills, you will likely need to consider alternative response methods such as a vacuum truck.

Sizing the spill kit

Now that you have selected the type of kit you need and the key elements, you need to assess the size of the spill kit you need. The size of your spill kit will be governed by the size of the spill you are likely to encounter, as well as other site conditions. For example, do you have multiple areas that might potentially have small spills? In this case, you might consider multiple bucket-sized spill kits in various locations close to the potential sources. Or do you have one area with the potential for a large spill? In that case, a large stationary spill kit might be more appropriate.

Benefits of using a spill kit

From a safety perspective, spill kits can help to reduce employee exposure to hazardous releases as well as reduce the potential for slips and falls. From an environmental standpoint spill containment prevents discharges to waterways and pervious surfaces. In general, it reduces risk and is easily incorporated as a part of a response plan.

Key to remember: You might be compliant with all the relevant regulations and a spill may still occur. You need to be ready to respond safely and efficiently no matter your industry. Building a spill kit will ensure that you are prepared to contain the spill.

Most Popular Highlights In Transportation

2022-08-29T05:00:00Z

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

The 150 air-mile exemptions, which are in the regulations at 395.1(e)(1) and (2), allow a driver to use a time record in place of a log, provided that certain conditions are met. While this is possibly the most widely used hours-of-service exemption, it may be the most commonly misused exemption, as well.

The basics of logging exemptions

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

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

The company must retain the time record and have it available for inspection for six months.

Need more info? View our ezExplanation on the 150 air-mile exception.

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

If the driver cannot meet the terms of the exemption (he or she goes too far or works too many hours), the driver must complete a regular driver’s log for the day as soon as the exemption no longer applies.

If the driver has had to complete a log 8 or fewer days out of the last 30 days, the driver can use a paper log for the day. If the driver had to complete a log more than 8 days out of the last 30 days, the driver needs to use an electronic log for the day (unless one of the ELD exemptions applies, such as operating a vehicle older than model year 2000).

30-minute break exemption

When a property-carrying driver is operating under the 150 air-mile exemption, the driver is also exempt from having to take the required 30-minute break (see 395.3(a)(3)(ii)).

If the driver began the day as a 150 air-mile driver and has driven more than 8 consecutive hours without a break, and something unexpected happens and the driver can no longer use the 150 air-mile exemption, the driver must stop and immediately take the 30-minute break as well as start logging. If the driver went outside of the 150 air-mile area before the driver had 8 hours of driving without a break from driving, the driver would be expected to take the break at the appropriate time.

Common myths

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

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

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

The 150 air-mile exemption at 395.1(e)(2) only applies to drivers that: Operate property-carrying vehicles that do not require a CDL to operate, and Stay within the 150 air-miles of their work reporting location.

If the driver stays within the 150 air-mile radius of the work reporting location, and returns to the work reporting location within 14 hours on 5 of the last 7 days, and 16 hours on 2 of the last seven days, the driver is allowed to use a time record in place of a log.

If the driver does not meet the terms of the exception, the driver will need to complete a log for the day. If the driver had to log more than 8 days out of the last 30 days, the driver will need to use an electronic log for the day. All of the other issues discussed above would apply to these drivers as well.

Managing the use

If you have drivers that use these exemptions, you will need to check time records to make sure they are complying with the appropriate time limits. You will also need to check movement records to verify that the drivers using these exemptions are staying within the mandated area (within 150 air-miles of the work reporting location for the day).

If a driver is over the hours limit, or has gone too far, you need to verify that the submitted a log for the day, either paper or electronic, depending on how many days the driver had to log out of the previous 30 days.

Verifying compliance is important

During an audit, if it is discovered that your drivers are using these exemptions incorrectly, you will be cited for not having drivers’ logs when required. Each day this occurred will be another violation, so the fine could be rather large if you are not managing the use of these exemptions!

2022-08-29T05:00:00Z

7 steps to return to duty following a DOT testing violation (updated)

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?

What DOT violation behaviors require action?

A commercial driver is required to go through the DOT return-to-duty process if:

The driver:
- Tested positive on a DOT drug test,
- Failed a DOT alcohol test, or
- Refused a DOT-required drug or alcohol test.

The motor carrier has actual knowledge of the driver’s alcohol consumption:
- Within four hours of coming on duty,
- While on duty,
- During the immediate eight hours following a commercial motor vehicle (CMV) crash.

The motor carrier has actual knowledge that the driver used a drug that:
- Is listed on Schedule l (e.g., marijuana); or
- Is a non-Schedule I drug that affects the driver’s ability to safely operate a CMV. It is not a violation if the prescribing physician told the driver it would be safe to use while on duty.

Actual knowledge occurs when information is provided to the motor carrier indicating a DOT testing violation. This might be learned through:

The driver’s admission,
The carrier’s observed drug or alcohol use,
A traffic citation for driving a CDL CMV while under the influence of drugs or alcohol,
Responses from previous employers as a part of the DOT drug and alcohol inquiry, or
A CDL Drug and Alcohol Clearinghouse query.

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.

1. Immediate response to DOT violations

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.

2. SAP evaluation

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.

3. Education and/or treatment

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.

4. Second SAP evaluation

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:

Successful completion of the treatment plan. The driver can return to a safety-sensitive function;
Successful completion of the treatment plan, but additional aftercare or out-patient counseling is required. The driver can return to a safety-sensitive function; or
Unsuccessful completion of the prescribed treatment plan, and additional follow-up evaluations are necessary. The driver cannot return to a safety-sensitive function.

5. SAP report

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.

6. Negative return-to-duty test(s)

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.

7. Continued monitoring

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.

Dangers of not acting on DOT violations

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.

2022-08-29T05:00:00Z

DOT to test safety of 3-hour ’pause’ to HOS

FMCSA testing truck drivers to pause 14-hour on-duty limit

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.

14-hour window closes fast

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.

Reg changes are a long way off

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.

Drivers can pause the 14-hour clock today

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:

The driver must take a break of at least 2 consecutive hours sometime during the day.
The break must be spent off duty or in a sleeper berth (or using a combination of the two).
The time before and after the break cannot include any driving after the 11th hour of driving or after the 14th hour of time. The break itself can be excluded from the 14-hour calculation (i.e., it “pauses” the clock).
The driver must have another break of at least 7 consecutive hours spent entirely in a sleeper berth, sometime before or after (but not necessarily connected with) the shorter break.
The two breaks together must add up to at least 10 hours (for example: 3 7, 2 8, 2 9, 2.5 7.5, etc.).

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.

2022-08-15T05:00:00Z

2023 California ‘Truck and Bus’ requirements and an exception

As of January 1, 2023, heavy-duty trucks and buses with engines from model years 2007 to 2009 operating in California must be either:

Replaced, which involves replacing the vehicle with a vehicle that is equipped with an engine meeting the 2010 emissions requirements, or
Retrofitted, which involves replacing the vehicle’s engine with an engine meeting the 2010 emissions standards, including installing a diesel particulate filter and selective catalytic reduction unit.

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.

But I can't find a vehicle!

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.

Reporting requirements

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.

Also starting in 2023

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.

Key to remember

These Truck and Bus requirements go into effect on January 1, 2023, and only apply to vehicles operating in California.

2022-12-29T06:00:00Z

What does 392.2C mean on a roadside inspection report?

Most motor carriers review their roadside inspection reports for the obvious reasons: fixing mechanical defects and identifying unsafe or noncompliant driver behavior.

Some violations are easy to decipher, such as a burned-out light bulb or exceeding the speed limit by a specific range. Others take a little more to figure out, such as doing the math to determine when and how a driver exceeded hours-of-service (HOS) limits. Then there are all those 392.2 violations with suffixes. Some count against a carrier’s Compliance, Safety, Accountability (CSA) scores, while others do not, depending on whether they contribute to causing a crash.

One that often baffles motor carriers is 392.2C.

What is 392.2C?

Section 392.2C is enforcement’s code for “failure to obey traffic control device.” The C stands for control.

The citation appears in the severity table for the Unsafe Driving BASIC (Behavior Analysis and Safety Improvement Category). The violation has been assigned a value of 5 out 10, with 10 being the most severe. The violation is used when calculating both the carrier’s and driver’s Unsafe Driving BASIC scores.

In most instances, the traffic control device is not a signal light or stop or yield sign. Rather, it is the sign that instructs the driver to pull into a weigh station.

View our Weigh Stations ezExplanation for additional information.

Who must pull into a weigh station?

The vehicles that must stop at scales and inspection locations vary from state to state and even from location to location within a state. The “weigh scale ahead” or similar sign should be the driver’s guide.

If the sign reads:

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

Often those who operate commercial vehicles not requiring a commercial driver’s license, such as a large pickup truck or small box truck, mistakenly believe weigh scale inspections are just for larger rigs.

What happens when a driver ignores signage?

If a driver goes past a weigh station without pulling in as directed by a traffic control device, enforcement will pursue and pull over the driver. The officer will then escort the driver back to the weigh station for a roadside inspection.

Even if the driver was honestly confused whether the sign applied to the vehicle, it is too late. And more than likely enforcement’s interest has been piqued. It is highly unlikely the driver will be waived through at this point, and 392.2C will be entered on the roadside inspection report.

Handling violations

CSA’s enforcement model suggests finding the root cause of roadside inspection violations to prevent future occurrences and ultimately improve BASIC scores.

A violation of 392.2C may have one of several root causes, such as:

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

Whatever the reason, it must be addressed with the driver. Corrective actions range from refresher training to termination. If the driver was trying to avoid enforcement for other reasons (drugs, alcohol, over HOS limits), these other violations need to be addressed accordingly.

Key to remember: Failing to obey a traffic control device will be used in calculation of the CSA Unsafe Driving BASIC scores. Motor carriers should address the root cause of the violation so it does not recur.

2023-04-13T05:00:00Z

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

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

FMCSA: Clearly defined

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

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

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

What about non-CDL CMV drivers?

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

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

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

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

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

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

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

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

Vague definition under OSHA

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

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

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

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

Forklift drivers,
Heavy machinery operators, and
Crane operators.

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

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

Most Popular Highlights In Human Resources

2023-08-28T05:00:00Z

When to skip a PIP and move to terminate an employee

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.

Firing

2022-11-18T06:00:00Z

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

Employers sometimes get tripped up on how to calculate the 1,250 hours worked eligibility criterion when employees need leave under the Family and Medical Leave Act (FMLA).

Does working overtime count toward the 1,250?

Recently, someone asked if overtime hours counted toward the 1,250 hours worked requirement (it does).

All hours actually worked apply to the 1,250, whether overtime or regular time, even if the overtime is not mandatory.

The 1,250 hours is calculated in relation to when the leave will begin, not when the employee puts an employer on notice of the need for leave.

Whether an employee is allowed to work overtime, however, is generally up to company policy. As far as pay goes, remember, if the employee is nonexempt (“hourly”) and works any overtime (mandatory or voluntary) the employee must be paid time and one-half for all hours worked over 40 within the workweek.

More about FMLA leave requirements

To be eligible to take FMLA leave, employees must:

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

Whether an employee has worked the minimum 1,250 hours is calculated based on determining compensable hours or work under the Fair Labor Standards Act (FLSA).

Calculating the 1,250 hours worked

When it comes to figuring out if an employee has worked at least 1,250 hours, it can get tricky. As was mentioned above, all hours worked, regular and overtime, must be counted.

Hours not worked should not be counted. The “not worked hours” include such time off as vacation time, sick leave, paid or unpaid holidays, or any other time in which an employee isn’t actually working — which can include disability, bereavement, FMLA and other forms of leave.

Once an employee meets the three eligibility criteria, including the 1,250 hours worked, for a particular leave reason, the employee remains eligible for the duration of the 12-month leave year period.

If the employee needs leave for another, different reason, eligibility would be recalculated.

Key to remember: All hours worked must be included in the 1,250 hours criterion when determining whether an employee is eligible for FMLA leave. Hours that aren’t worked (like vacation) are not included.

Wage and Hour HIPPA FLSA HIPAA

2022-08-30T05:00:00Z

Recouping overpaid wages: What employers need to know

Wage overpayment errors can and will occur

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.

Key to remember

Wage overpayment errors can and will occur. Employers need to know their obligations under both federal and state laws before recouping money.

2022-09-06T05:00:00Z

How to collect premiums during unpaid FMLA leave

Payment options during unpaid FLMA leave

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:

Pre-pay
Pay-as-you-go
Catch-up

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.

Option #1: Pre-pay

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).

Option #2: Pay-as-you-go

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.

Option #3: Catch-up

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:

The employee elects to continue health coverage while on leave;
The employer will pay the employee’s share of premiums during the leave; and
The employee will repay those amounts when he or she returns.

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.

Key to remember

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.

2023-01-12T06:00:00Z

Performance review timing and FMLA leave

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

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

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

Delaying a review

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

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

What the regulations say

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

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

Avoiding a negative factor

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

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

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

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

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

2022-07-19T05:00:00Z

How to calculate exempt employee salary during intermittent leave

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

Meet Kaylee

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

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

Calculating pay

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

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

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

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

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

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

Most Popular Highlights In Safety & Health

2023-12-28T06:00:00Z

New marijuana testing restrictions in effect for 2024: How to handle them

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:

A position requiring a federal government background investigation or security clearance.
A position with a general authority for a Washington law enforcement agency.
A position with a fire department, fire protection district, or regional fire protection service authority.
A position as a first responder, including a dispatcher position with a public or private 911 emergency communications system or position responsible for the provision of emergency medical services.
A position as a corrections officer with a jail, detention facility, or the department of corrections.
A position in the airline or aerospace industries.
A safety-sensitive position for which impairment while working presents a substantial risk of death. (These positions must be identified by the employer prior to the applicant’s application for employment.)
Testing under state or federal laws requiring an applicant to be tested for controlled substances.

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.

2023-06-09T05:00:00Z

Understanding the limitations of eyewash bottles

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

Bottles vs. other eyewashes for emergency equipment

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

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

Capacity of eyewash bottles

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

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

Limitations of using eyewash bottles

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

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

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

OSHA enforcement on eyewashes

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

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

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

Key to remember

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

2022-09-06T05:00:00Z

What are some alternatives to nitrile gloves?

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.

Alternative glove selection for COVID-19

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.

2022-08-29T05:00:00Z

Don’t prop open fire doors on your jobsite

Propping open fire doors is a common violation

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.

2023-11-02T05:00:00Z

First aid supplies: Lock ‘em up or leave ‘em out?

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.”

What is “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).

But my supplies are disappearing at an alarming rate!

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.

What supplies are required for my first aid kits?

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:

Changing tourniquet type to ensure it meets first aid needs. The equipment intended to prevent blood loss should be at least 1.5 inches wide and be effective for limb sizes 7–33 inches around.
Making foil blankets mandatory. This measure was enacted after assessing similar international standards and recognizing “the multiple purposes that the item can serve to respond to first aid emergencies.”
Providing further guidance on bleeding control kits. According to ISEA, these “contain more advanced first aid supplies to immediately treat life-threatening external bleeding.”

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.

Keys to Remember

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.

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2023-03-29T05:00:00Z

Which NAICS code should you use for OSHA?

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.

Choosing the correct year

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:

Employers trying to determine if they’re exempt from keeping a 300 Log under 1904.2 must use the 2002 codes.
Employers trying to determine if they must submit injury to OSHA by March 2nd must use the 2012 codes. That will change to the 2017 codes for reporting in 2024.

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.

Choosing the correct code

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:

Each establishment represents a distinctly separate business;
Each business engages in a different economic activity;
No single NAICS code applies to the joint activities at the establishments; and
Separate reports are routinely prepared for each establishment on the number of employees, their wages and salaries, sales or receipts, and other business information.

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:

Centralized administrative offices
Head offices
Corporate offices
District and regional offices
Subsidiary management offices

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.

Counting employees

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.

Section 1904.1 allows an exemption from keeping a 300 Log if the entire company has 10 or fewer employees, combining all establishments.
Section 1904.2 allows an exemption from keeping a 300 Log based on the NAICS code for each location, regardless of the number of employees at the location.
Section 1904.41 requires establishments in listed NAICS codes to submit injury data to OSHA annually, but only if the establishment (not the entire company) falls within an employee count range. Establishments with fewer than 20 employees need not submit even if the NAICS code appears in OSHA’s list.

Key to remember: NAICS codes update every five years, and employers must use the correct list, which may differ in various regulations.

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