EPA: Privacy Act Regulations for EPA–100

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EPA: Privacy Act Regulations for EPA–100

2023-11-08T06:00:00Z

SUMMARY: The Environmental Protection Agency (EPA) is taking direct final action to revise the Agency's Privacy Act regulations to exempt a new system of records, EPA–100, OIG Data Analytics Enterprise, from certain requirements of the Privacy Act. In this rulemaking, the Agency exempts portions of this system from certain provisions of the Privacy Act because of law enforcement requirements and to avoid interference during the conduct of criminal, civil, or administrative actions or investigations. Additionally, EPA is taking direct final action to revise the Agency's Privacy Act regulations to update the names of systems of records with general and specific exemptions, change wording to reflect that the Office of Inspector General (OIG) is an independent component of EPA, incorporate the revised citation for the Inspector General Act of 1978 and to remove specific systems of record which are no longer exempt.

DATES: This rule is effective on February 6, 2024 published in the Federal Register November 8, 2023, page 76999.

§16.11 General exemptions.
(a) and (c)(2)	Revised	View text
(c)(6)	Added	View text
(d) and the introductory text of paragraph (e)	Revised	View text
§16.12 Specific exemptions.
(a)(1), (a)(4)(i), (a)(4)(iii), and the introductory text of paragraph (a)(5)	Revised	View text
(b)(1) and (4), and the introductory text of paragraph (b)(5)	Revised	View text

New Text

§16.11 General exemptions.

(a) Systems of records affected. (1) EPA–17 Online Criminal Enforcement Activities Network (OCEAN).

(2) EPA–40 Inspector General Enterprise Management System (IGEMS) Investigative Module.

(3) EPA–63 eDiscovery Enterprise Tool Suite.

(4) EPA–79 NEIC Master Tracking System.

(5) EPA–100 OIG Data Analytics Enterprise.

* * * * *

(2) The Agency's system of records, EPA–40 is maintained by the Office of Inspector General (OIG), an independent component of EPA that performs as its principal function activities pertaining to the enforcement of criminal laws. Authority for the criminal law enforcement activities of the OIG's Office of Investigations is the Inspector General Act of 1978, as amended, 5 U.S.C. 401–424.

* * * * *

(d) Scope of exemption. EPA systems of records 17, 40, 63, 79, and 100 are exempted from the following provisions of the PA: 5 U.S.C. 552a(c)(3) and (4); (d); (e)(1), (2), (3), (4)(G), and (H), (5), and (8); (f)(2) through (5); and (g). To the extent that the exemption for EPA systems of records 17, 40, 63, 79 and 100 claimed under 5 U.S.C. 552a(j)(2) is held to be invalid, then an exemption under 5 U.S.C. 552a(k)(2) is claimed for these systems of records from (c)(3), (d), (e)(1), (e)(4)(G) and (H), and (f)(2) through (5). For Agency's system of records, EPA system 40, an exemption is separately claimed under 5 U.S.C. 552(k)(5) from (c)(3), (d), (e)(1), (e)(4)(G), (4)(H), and (f)(2) through (5). For Agency's system of records, EPA system 100, an exemption is separately claimed under 5. U.S.C. 552(k)(5) from (c)(3) and (d).

(e) Reasons for exemption. EPA systems of records 17, 40, 63, 79, and 100 are exempted from the provisions of the PA in paragraph (d) of this section for the following reasons:

* * * * *

§16.12 Specific exemptions.

(a) * * *

(1) Systems of records affected. (i) EPA–17 Online Criminal Enforcement Activities Network (OCEAN).

(ii) EPA–21 External Compliance Case Tracking System (EXCATS).

(iii) EPA–30 Inspector General Enterprise Management System (IGEMS) Hotline Module.

(iv) EPA–40 Inspector General Enterprise Management System (IGEMS) Investigative Module.

(v) EPA–63 eDiscovery Enterprise Tool Suite.

(vi) EPA–79 NEIC Master Tracking System.

(vii) EPA–100 OIG Data Analytics Enterprise.

* * * * *

(4) * * *

(i) EPA systems of records 17, 30, 40, 63, 79, and 100 are exempted from the following provisions of the PA, subject to the limitations set forth in 5 U.S.C. 552a(k)(2): 5 U.S.C. 552a(c)(3); (d); (e)(1), (4)(G) and (4)(H); and (f)(2) through (5). EPA system of records 21 is exempt from the following provisions of the PA, subject to the limitations set forth in 5 U.S.C. 552a(k)(2): 5 U.S.C. 552a(c)(3), (d), and (e)(1).

* * * * *

(iii) EPA–17 Online Criminal Enforcement Activities Network (OCEAN), EPA–40 Inspector General Enterprise Management System (IGEMS) Investigative Module, EPA–79 NEIC Master Tracking System, and EPA–100 OIG Data Analytics Enterprise are exempted under 5 U.S.C. 552a(j)(2), and these systems are exempted under 5 U.S.C. 552a(k)(2) only to the extent that the (j)(2) exemption is held to be invalid.

(5) Reasons for exemption. EPA systems of records 17, 21, 30, 40, 63, 79, and 100 are exempted from the provisions of the PA in paragraph (a)(4) of this section for the following reasons:

* * * * *

(b) * * *

(1) Systems of records affected. (i) EPA 36 Research Grant, Cooperative Agreement, and Fellowship Application Files.

(ii) EPA 40 Inspector General Enterprise Management System (IGEMS) Investigative Module.

(iii) EPA 100 OIG Data Analytics Enterprise.

* * * * *

(4) Scope of exemption. (i) EPA 36 and 100 are exempted from 5 U.S.C. 552a(c)(3) and (d). EPA 40 is exempted from the following provisions of the PA, subject to the limitations of 5 U.S.C. 552a(k)(5); 5 U.S.C. 552a(c)(3); (d); (e)(1), (4)(H); and (f)(2) through (5).

(ii) To the extent that records in EPA 40 and 100 reveal a violation or potential violation of law, then an exemption under 5 U.S.C. 552a(k)(2) is also claimed for these records. EPA 40 and 100 are also exempt under 5 U.S.C. 552a(j)(2).

(5) Reasons for exemption. EPA 36, 40, and 100 are exempted from the above provisions of the PA for the following reasons:

* * * * *

DATES: This rule is effective on February 6, 2024 published in the Federal Register November 8, 2023, page 76999.

§16.11 General exemptions.
(a) and (c)(2)	Revised	View text
(c)(6)	Added	View text
(d) and the introductory text of paragraph (e)	Revised	View text
§16.12 Specific exemptions.
(a)(1), (a)(4)(i), (a)(4)(iii), and the introductory text of paragraph (a)(5)	Revised	View text
(b)(1) and (4), and the introductory text of paragraph (b)(5)	Revised	View text

New Text

§16.11 General exemptions.

(a) Systems of records affected. (1) EPA–17 Online Criminal Enforcement Activities Network (OCEAN).

(2) EPA–40 Inspector General Enterprise Management System (IGEMS) Investigative Module.

(3) EPA–63 eDiscovery Enterprise Tool Suite.

(4) EPA–79 NEIC Master Tracking System.

(5) EPA–100 OIG Data Analytics Enterprise.

* * * * *

(e) Reasons for exemption. EPA systems of records 17, 40, 63, 79, and 100 are exempted from the provisions of the PA in paragraph (d) of this section for the following reasons:

* * * * *

§16.12 Specific exemptions.

(a) * * *

(1) Systems of records affected. (i) EPA–17 Online Criminal Enforcement Activities Network (OCEAN).

(ii) EPA–21 External Compliance Case Tracking System (EXCATS).

(iii) EPA–30 Inspector General Enterprise Management System (IGEMS) Hotline Module.

(iv) EPA–40 Inspector General Enterprise Management System (IGEMS) Investigative Module.

(v) EPA–63 eDiscovery Enterprise Tool Suite.

(vi) EPA–79 NEIC Master Tracking System.

(vii) EPA–100 OIG Data Analytics Enterprise.

* * * * *

(4) * * *

* * * * *

(5) Reasons for exemption. EPA systems of records 17, 21, 30, 40, 63, 79, and 100 are exempted from the provisions of the PA in paragraph (a)(4) of this section for the following reasons:

* * * * *

(b) * * *

(1) Systems of records affected. (i) EPA 36 Research Grant, Cooperative Agreement, and Fellowship Application Files.

(ii) EPA 40 Inspector General Enterprise Management System (IGEMS) Investigative Module.

(iii) EPA 100 OIG Data Analytics Enterprise.

* * * * *

(5) Reasons for exemption. EPA 36, 40, and 100 are exempted from the above provisions of the PA for the following reasons:

* * * * *

RELATED NEWS

Most Recent Highlights In Environmental

2021-11-15T06:00:00Z

86 FR 62917 Significant New Use Rules on Certain Chemical Substances (20-10.B)

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 9 and 721

[EPA-HQ-OPPT-2020-0497; FRL-8215-01-OCSPP]

RIN 2070-AB27

Significant New Use Rules on Certain Chemical Substances (20-10.B)

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

SUMMARY: EPA is issuing significant new use rules (SNURs) under the Toxic Substances Control Act (TSCA) for chemical substances which were the subject of premanufacture notices (PMNs). This action requires persons to notify EPA at least 90 days before commencing manufacture (defined by statute to include import) or processing of any of these chemical substances for an activity that is designated as a significant new use by this rule. This action further requires that persons not commence manufacture or processing for the significant new use until they have submitted a Significant New Use Notice (SNUN), EPA has conducted a review of the notice, made an appropriate determination on the notice, and has taken any risk management actions as are required as a result of that determination.

DATES: This rule is effective on January 14, 2022. For purposes of judicial review, this rule shall be promulgated at 1 p.m. (e.s.t.) on November 29, 2021.

FOR FURTHER INFORMATION CONTACT:

For technical information contact: William Wysong, New Chemicals Division (7405M), Office of Pollution Prevention and Toxics, Environmental Protection Agency, 1200 Pennsylvania Ave. NW, Washington, DC 20460-0001; telephone number: (202) 564-4163; email address: wysong.william@epa.gov.

For general information contact: The TSCA-Hotline, ABVI-Goodwill, 422 South Clinton Ave., Rochester, NY 14620; telephone number: (202) 554-1404; email address: TSCA-Hotline@epa.gov.

SUPPLEMENTARY INFORMATION:

I. General Information

A. Does this action apply to me?

You may be potentially affected by this action if you manufacture, process, or use the chemical substances contained in this rule. The following list of North American Industrial Classification System (NAICS) codes is not intended to be exhaustive, but rather provides a guide to help readers determine whether this document applies to them. Potentially affected entities may include:

• Manufacturers or processors of one or more subject chemical substances (NAICS codes 325 and 324110), e.g., chemical manufacturing and petroleum refineries.

This action may also affect certain entities through pre-existing import certification and export notification rules under TSCA, which would include the SNUR requirements. Chemical importers are subject to the TSCA section 13 (15 U.S.C. 2612) import provisions. The EPA policy in support of import certification appears at 40 CFR part 707, subpart B. In addition, pursuant to 40 CFR 721.20, any persons who export or intend to export a chemical substance that is the subject of this rule are subject to the export notification provisions of TSCA section 12(b) (15 U.S.C. 2611(b)), and must comply with the export notification requirements in 40 CFR part 707, subpart D.

B. How can I access the docket?

The docket includes information considered by the Agency in developing the proposed and final rules. The docket for this action, identified by docket identification (ID) number EPA-HQ-OPPT-2020-0497, is available at https://www.regulations.gov and at the Office of Pollution Prevention and Toxics Docket (OPPT Docket), Environmental Protection Agency Docket Center (EPA/DC), West William Jefferson Clinton Bldg., Rm. 3334, 1301 Constitution Ave. NW, Washington, DC. The Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The telephone number for the Public Reading Room is (202) 566-1744, and the telephone number for the OPPT Docket is (202) 566-0280. Please review the visitor instructions and additional information about the docket available at https://www.epa.gov/dockets.

Due to the public health emergency, the EPA Docket Center (EPA/DC) and Reading Room is closed to visitors with limited exceptions. The staff continues to provide remote customer service via email, phone, and webform. For the latest status information on EPA/DC services and docket access, visit https://www.epa.gov/dockets.

II. Background

A. What action is the Agency taking?

EPA is finalizing SNURs under TSCA section 5(a)(2) for chemical substances which were the subject of PMNs P-18-289, P-18-330, P-18-334, P-18-335, and P-18-337. These SNURs require persons who intend to manufacture or process any of these chemical substances for an activity that is designated as a significant new use to notify EPA at least 90 days before commencing that activity.

Previously, in the Federal Register of October 20, 2020 (85 FR 66506) (FRL-10015-28), EPA proposed SNURs for these chemical substances. More information on the specific chemical substances subject to this final rule can be found in the Federal Register document proposing the SNURs. The docket includes information considered by the Agency in developing the proposed and final rules, including public comments and EPA's responses to the public comments received on the proposed rules, as described in Unit IV.

B. What is the Agency's authority for taking this action?

TSCA section 5(a)(2) (15 U.S.C. 2604(a)(2)) authorizes EPA to determine that a use of a chemical substance is a “significant new use.” EPA must make this determination by rule after considering all relevant factors, including the four TSCA section 5(a)(2) factors listed in Unit III.

C. Do the SNUR general provisions apply?

General provisions for SNURs appear in 40 CFR part 721, subpart A. These provisions describe persons subject to the rule, recordkeeping requirements, exemptions to reporting requirements, and applicability of the rule to uses occurring before the effective date of the rule. Provisions relating to user fees appear at 40 CFR part 700. Pursuant to 40 CFR 721.1(c), persons subject to these SNURs must comply with the same SNUN requirements and EPA regulatory procedures as submitters of PMNs under TSCA section 5(a)(1)(A). In particular, these requirements include the information submission requirements of TSCA sections 5(b) and 5(d)(1), the exemptions authorized by TSCA sections 5(h)(1), 5(h)(2), 5(h)(3), and 5(h)(5) and the regulations at 40 CFR part 720. Once EPA receives a SNUN, EPA must either determine that the significant new use is not likely to present an unreasonable risk of injury or take such regulatory action as is associated with an alternative determination before manufacture or processing for the significant new use can commence. If EPA determines that the significant new use is not likely to present an unreasonable risk, EPA is required under TSCA section 5(g) to make public, and submit for publication in the Federal Register , a statement of EPA's findings.

III. Significant New Use Determination

A. Determination Factors

TSCA section 5(a)(2) states that EPA's determination that a use of a chemical substance is a significant new use must be made after consideration of all relevant factors, including:

• The projected volume of manufacturing and processing of a chemical substance.

• The extent to which a use changes the type or form of exposure of human beings or the environment to a chemical substance.

• The extent to which a use increases the magnitude and duration of exposure of human beings or the environment to a chemical substance.

• The reasonably anticipated manner and methods of manufacturing, processing, distribution in commerce, and disposal of a chemical substance.

In determining what would constitute a significant new use for the chemical substances that are the subject of these SNURs, EPA considered relevant information about the toxicity of the chemical substances, and potential human exposures and environmental releases that may be associated with the substances, in the context of the four bulleted TSCA section 5(a)(2) factors listed in this unit. During its review of these chemicals, EPA identified certain conditions of use that are not intended by the submitters, but reasonably foreseen to occur. EPA is designating those reasonably foreseen conditions of use as well as certain other circumstances of use as significant new uses.

B. Procedures for Significant New Uses Claimed as Confidential Business Information (CBI)

By this rule, EPA is establishing certain significant new uses which have been claimed as CBI subject to Agency confidentiality regulations at 40 CFR part 2 and 40 CFR part 720, subpart E. Absent a final determination or other disposition of the confidentiality claim under 40 CFR part 2 procedures, EPA is required to keep this information confidential. EPA promulgated a procedure to deal with the situation where a specific significant new use is CBI, at 40 CFR 721.1725(b)(1) and has referenced it to apply to other SNURs.

Under these procedures a manufacturer or processor may request EPA to determine whether a specific use would be a significant new use under the rule. The manufacturer or processor must show that it has a bona fide intent to manufacture or process the chemical substance and must identify the specific use for which it intends to manufacture or process the chemical substance. If EPA concludes that the person has shown a bona fide intent to manufacture or process the chemical substance, EPA will tell the person whether the use identified in the bona fide submission would be a significant new use under the rule. Since most of the chemical identities of the chemical substances subject to these SNURs are also CBI, manufacturers and processors can combine the bona fide submission under the procedure in 40 CFR 721.1725(b)(1) with that under 40 CFR 721.11 into a single step.

If EPA determines that the use identified in the bona fide submission would not be a significant new use, i.e., the use does not meet the criteria specified in the rule for a significant new use, that person can manufacture or process the chemical substance so long as the significant new use trigger is not met. In the case of a production volume trigger, this means that the annual production volume limit is not exceeded by the amount identified in the bona fide submission to EPA. Because of confidentiality concerns, EPA does not typically disclose the actual production volume that constitutes the use trigger. Thus, if the person later intends to exceed that volume, a new bona fide submission would be necessary to determine whether that higher volume would be a significant new use.

IV. Public Comments

EPA received a public comment from one identifying entity on the proposed rule. The Agency's response is described in a separate Response to Public Comments document that is available in the public docket for this rulemaking. In addition, EPA received three anonymous comments. They were either general in nature and did not pertain to the proposed rule or were broadly supportive of the rule and requested no changes to the rule itself; therefore, no response is required. EPA made no changes to the final rule based on these comments.

V. Substances Subject to This Rule

EPA is establishing significant new use and recordkeeping requirements for chemical substances in 40 CFR part 721, subpart E. In Unit IV. of the proposed SNUR, EPA provided the following information for each chemical substance:

• PMN number.

• Chemical name (generic name, if the specific name is claimed as CBI).

• Chemical Abstracts Service (CAS) Registry number (if assigned for non-confidential chemical identities).

• Basis for the SNUR.

• Potentially useful information.

• CFR citation assigned in the regulatory text section of this final rule.

The regulatory text section of these rules specifies the activities designated as significant new uses. Certain new uses, including production volume limits and other uses designated in the rules, may be claimed as CBI.

VI. Rationale and Objectives of the Rule

A. Rationale

During review of the PMNs submitted for the chemical substances that are the subject of these SNURs and as further discussed in Unit IV. of the proposed rule, EPA identified certain other reasonably foreseen conditions of use in addition to those conditions of use intended by the submitter. EPA has determined that the chemical under the intended conditions of use is not likely to present an unreasonable risk. However, EPA has not assessed risks associated with the reasonably foreseen conditions of use. EPA is designating these conditions of use as well as certain other circumstances of use as significant new uses. As a result, those significant new uses cannot occur without going through a separate, subsequent EPA review and determination process associated with a SNUN.

B. Objectives

EPA is issuing these SNURs because the Agency wants:

• To have an opportunity to review and evaluate data submitted in a SNUN before the notice submitter begins manufacturing or processing a listed chemical substance for the described significant new use.

• To be obligated to make a determination under TSCA section 5(a)(3) regarding the use described in the SNUN, under the conditions of use. The Agency will either determine under section 5(a)(3)(C) that the significant new use is not likely to present an unreasonable risk, including an unreasonable risk to a potentially exposed or susceptible subpopulation identified as relevant by the Administrator under the conditions of use, or make a determination under TSCA section 5(a)(3)(A) or (B) and take the required regulatory action associated with the determination, before manufacture or processing for the significant new use of the chemical substance can occur.

• To be able to complete its review and determination on each of the PMN substances, while deferring analysis on the significant new uses proposed in these rules unless and until the Agency receives a SNUN.

Issuance of a SNUR for a chemical substance does not signify that the chemical substance is listed on the TSCA Inventory. Guidance on how to determine if a chemical substance is on the TSCA Inventory is available on the internet at https://www.epa.gov/tsca-inventory.

VII. Applicability of the Rules to Uses Occurring Before the Effective Date of the Final Rule

To establish a significant new use, EPA must determine that the use is not ongoing. The chemical substances subject to this rule were undergoing premanufacture review at the time of signature of the proposed rule and were not on the TSCA inventory. In cases where EPA has not received a notice of commencement (NOC) and the chemical substance has not been added to the TSCA Inventory, no person may commence such activities without first submitting a PMN. Therefore, for the chemical substances subject to these SNURs, EPA concluded at the time of signature of the proposed rule that the designated significant new uses were not ongoing.

EPA designated October 7, 2020 (the date of web posting of the proposed rule) as the cutoff date for determining whether the new use is ongoing. The objective of EPA's approach is to ensure that a person cannot defeat a SNUR by initiating a significant new use before the effective date of the final rule.

Persons who began commercial manufacture or processing of the chemical substances for a significant new use identified on or after that date will have to cease any such activity upon the effective date of the final rule. To resume their activities, these persons would have to first comply with all applicable SNUR notification requirements and EPA would have to take action under TSCA section 5 allowing manufacture or processing to proceed.

VIII. Development and Submission of Information

EPA recognizes that TSCA section 5 does not require development of any particular new information ( e.g., generating test data) before submission of a SNUN. There is an exception: If a person is required to submit information for a chemical substance pursuant to a rule, Order or consent agreement under TSCA section 4, then TSCA section 5(b)(1)(A) requires such information to be submitted to EPA at the time of submission of the SNUN.

In the absence of a rule, Order, or consent agreement under TSCA section 4 covering the chemical substance, persons are required only to submit information in their possession or control and to describe any other information known to or reasonably ascertainable by them (see 40 CFR 720.50). However, upon review of PMNs and SNUNs, the Agency has the authority to require appropriate testing. Unit IV. of the proposed rule lists potentially useful information for all SNURs listed here. Descriptions are provided for informational purposes. The potentially useful information identified in Unit IV. of the proposed rule will be useful to EPA's evaluation in the event that someone submits a SNUN for the significant new use. Companies who are considering submitting a SNUN are encouraged, but not required, to develop the information on the substance, which may assist with EPA's analysis of the SNUN.

EPA strongly encourages persons, before performing any testing, to consult with the Agency pertaining to protocol election. Furthermore, pursuant to TSCA section 4(h), which pertains to reduction of testing in vertebrate animals, EPA encourages consultation with the Agency on the use of alternative test methods and strategies (also called New Approach Methodologies, or NAMs), if available, to generate the recommended test data. EPA encourages dialog with Agency representatives to help determine how best the submitter can meet both the data needs and the objective of TSCA section 4(h). For more information on alternative test methods and strategies to reduce vertebrate animal testing, visit https://www.epa.gov/assessing-and-managing-chemicals-under-tsca/alternative-test-methods-and-strategies-reduce.

The potentially useful information described in Unit IV. of the proposed rule may not be the only means of providing information to evaluate the chemical substance associated with the significant new uses. However, submitting a SNUN without any test data may increase the likelihood that EPA will take action under TSCA sections 5(e) or 5(f). EPA recommends that potential SNUN submitters contact EPA early enough so that they will be able to conduct the appropriate tests.

SNUN submitters should be aware that EPA will be better able to evaluate SNUNs which provide detailed information on the following:

• Human exposure and environmental release that may result from the significant new use of the chemical substances.

IX. SNUN Submissions

According to 40 CFR 721.1(c), persons submitting a SNUN must comply with the same notification requirements and EPA regulatory procedures as persons submitting a PMN, including submission of test data on health and environmental effects as described in 40 CFR 720.50. SNUNs must be submitted on EPA Form No. 7710-25, generated using e-PMN software, and submitted to the Agency in accordance with the procedures set forth in 40 CFR 720.40 and 721.25. E-PMN software is available electronically at https://www.epa.gov/reviewing-new-chemicals-under-toxic-substances-control-act-tsca.

X. Economic Analysis

EPA has evaluated the potential costs of establishing SNUN requirements for potential manufacturers and processors of the chemical substances subject to this rule. EPA's complete economic analysis is available in the docket for this rulemaking.

XI. Statutory and Executive Order Reviews

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

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

This action establishes SNURs for new chemical substances that were the subject of PMNs. The Office of Management and Budget (OMB) has exempted these types of actions from review under Executive Orders 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011).

B. Paperwork Reduction Act (PRA)

According to PRA, 44 U.S.C. 3501 et seq., an agency may not conduct or sponsor, and a person is not required to respond to a collection of information that requires OMB approval under PRA, unless it has been approved by OMB and displays a currently valid OMB control number. The OMB control numbers for EPA's regulations in title 40 of the CFR, after appearing in the Federal Register, are listed in 40 CFR part 9, and included on the related collection instrument or form, if applicable.

The information collection requirements related to this action have already been approved by OMB pursuant to PRA under OMB control number 2070-0012 (EPA ICR No. 574). This action does not impose any burden requiring additional OMB approval. If an entity were to submit a SNUN to the Agency, the annual burden is estimated to average between 30 and 170 hours per response. This burden estimate includes the time needed to review instructions, search existing data sources, gather and maintain the data needed, and complete, review, and submit the required SNUN.

The listing of the OMB control numbers of the collection instruments and their subsequent codification in the table in 40 CFR 9.1 satisfies the display requirements of the PRA and OMB's implementing regulations at 5 CFR part 1320. Since this ICR was previously subject to public notice and comment prior to OMB approval, and given the technical nature of the table in 40 CFR part 9, EPA finds that further notice and comment to amend it is unnecessary. As a result, EPA finds that there is “good cause” under section 553(b)(3)(B) of the Administrative Procedure Act (5 U.S.C. 553(b)(3)(B)) to amend this table in 40 CFR 9.1 without further notice and comment.

C. Regulatory Flexibility Act (RFA)

Pursuant to RFA section 605(b), 5 U.S.C. 601 et seq., I hereby certify that promulgation of this SNUR would not have a significant adverse economic impact on a substantial number of small entities. The requirement to submit a SNUN applies to any person (including small or large entities) who intends to engage in any activity described in the final rule as a “significant new use.” Because these uses are “new,” based on all information currently available to EPA, it appears that no small or large entities presently engage in such activities. A SNUR requires that any person who intends to engage in such activity in the future must first notify EPA by submitting a SNUN. Although some small entities may decide to pursue a significant new use in the future, EPA cannot presently determine how many, if any, there may be. However, EPA's experience to date is that, in response to the promulgation of SNURs covering over 1,000 chemicals, the Agency receives only a small number of notices per year. For example, the number of SNUNs received was seven in Federal fiscal year (FY) 2013, 13 in FY2014, six in FY2015, 12 in FY2016, 13 in FY2017, and 11 in FY2018. Only a fraction of these were from small businesses. In addition, the Agency currently offers relief to qualifying small businesses by reducing the SNUN submission fee from $16,000 to $2,800. This lower fee reduces the total reporting and recordkeeping of cost of submitting a SNUN to about $10,116 for qualifying small firms. Therefore, the potential economic impacts of complying with this SNUR are not expected to be significant or adversely impact a substantial number of small entities. In a SNUR that published in the Federal Register of June 2, 1997 (62 FR 29684) (FRL-5597-1), the Agency presented its general determination that final SNURs are not expected to have a significant economic impact on a substantial number of small entities, which was provided to the Chief Counsel for Advocacy of the Small Business Administration.

D. Unfunded Mandates Reform Act (UMRA)

Based on EPA's experience with proposing and finalizing SNURs, State, local, and Tribal governments have not been impacted by these rulemakings, and EPA does not have any reasons to believe that any State, local, or Tribal government will be impacted by this action. As such, EPA has determined that this action does not impose any enforceable duty, contain any unfunded mandate, or otherwise have any effect on small governments subject to the requirements of UMRA sections 202, 203, 204, or 205 (2 U.S.C. 1501 et seq. ).

E. Executive Order 13132: Federalism

This action will not have federalism implications because it is not expected to have a substantial direct effect on 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, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999).

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

This action will not have Tribal implications because it is not expected to have substantial direct effects on Indian Tribes, significantly or uniquely affect the communities of Indian Tribal governments and does not involve or impose any requirements that affect Indian Tribes. Accordingly, the requirements of Executive Order 13175 (65 FR 67249, November 9, 2000), do not apply to this action.

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

This action is not subject to Executive Order 13045 (62 FR 19885, April 23, 1997), because this is not an economically significant regulatory action as defined by Executive Order 12866, and this action does not address environmental health or safety risks disproportionately affecting 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 (66 FR 28355, May 22, 2001), because this action is not a significant regulatory action under Executive Order 12866.

I. National Technology Transfer and Advancement Act (NTTAA)

In addition, since this action does not involve any technical standards, NTTAA section 12(d), 15 U.S.C. 272 note, does not apply to this action.

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

This action does not entail special considerations of environmental justice related issues as delineated by Executive Order 12898 (59 FR 7629, February 16, 1994).

K. Congressional Review Act (CRA)

This action is subject to the CRA, 5 U.S.C. 801 et seq., and EPA will submit a rule report containing this rule and other required information 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).

List of Subjects

40 CFR Part 9

Environmental protection, Reporting and recordkeeping requirements.

40 CFR Part 721

Environmental protection, Chemicals, Hazardous substances, Reporting and recordkeeping requirements.

Dated: October 26, 2021.

Tala Henry,

Deputy Director, Office of Pollution Prevention and Toxics.

Therefore, for the reasons stated in the preamble, EPA is amending 40 CFR chapter I as follows:

PART 9—OMB APPROVALS UNDER THE PAPERWORK REDUCTION ACT

1. The authority citation for part 9 continues to read as follows:

Authority:

7 U.S.C. 135 et seq., 136-136y; 15 U.S.C. 2001, 2003, 2005, 2006, 2601-2671; 21 U.S.C. 331j, 346a; 31 U.S.C. 9701; 33 U.S.C. 1251 et seq., 1311, 1313d, 1314, 1318, 1321, 1326, 1330, 1342, 1344, 1345 (d) and (e), 1361; E.O. 11735, 38 FR 21243, 3 CFR, 1971-1975 Comp. p. 973; 42 U.S.C. 241, 242b, 243, 246, 300f, 300g, 300g-1, 300g-2, 300g-3, 300g-4, 300g-5, 300g-6, 300j-1, 300j-2, 300j-3, 300j-4, 300j-9, 1857 et seq., 6901-6992k, 7401-7671q, 7542, 9601-9657, 11023, 11048.

2. In §9.1, amend the table by adding entries for §§721.11561 through 721.11565 in numerical order under the undesignated center heading “Significant New Uses of Chemical Substances” to read as follows:

§9.1

OMB approvals under the Paperwork Reduction Act.

* * * * *


40 CFR citation	OMB control No.
* * * * *
Significant New Uses of Chemical Substances

* * * * *
721.11561	2070-0012
721.11562	2070-0012
721.11563	2070-0012
721.11564	2070-0012
721.11565	2070-0012
* * * * *

* * * * *

PART 721—SIGNIFICANT NEW USES OF CHEMICAL SUBSTANCES

3. The authority citation for part 721 continues to read as follows:

Authority:

15 U.S.C. 2604, 2607, and 2625(c).

4. Add §§721.11561 through 721.11565 to subpart E to read as follows:

Subpart E—Significant New Uses for Specific Chemical Substances

Sec.

* * * * *

§721.11561 2-[2-(methylcarboxymonocyclic)amino)ethoxy]alcohol (generic).

§721.11562 Formaldehyde, polymer with alkyl aryl ketone (generic).

§721.11563 Propanedioic acid, 1,3-dihexyl ester.

§721.11564 Propanedioic acid, 1,3-dicyclohexyl ester.

§721.11565Propanedioic acid, 2,2-bis(hydroxymethyl)-, 1,3-dicyclohexyl ester.

* * * * *

§721.11561 2-[2-(methylcarboxymonocyclic)amino)ethoxy]alcohol (generic).

(a) Chemical substance and significant new uses subject to reporting. (1) The chemical substance identified generically as 2-[2-(methylcarboxymonocyclic)amino)ethoxy]alcohol (generic).(PMN P-18-289) is subject to reporting under this section for the significant new uses described in paragraph (a)(2) of this section.

(2) The significant new uses are:

(i) Industrial, commercial, and consumer activities. Requirements as specified in §721.80(j) and (s). For purposes of §721.80(s), the annual manufacture and importation volume is 80,000 kilograms.

(ii) [Reserved]

(b) Specific requirements. The provisions of subpart A of this part apply to this section except as modified by this paragraph (b).

(1) Recordkeeping. Recordkeeping requirements as specified in §721.125(a) through (c) and (i) are applicable to manufacturers and processors of this substance.

(2) Limitation or revocation of certain notification requirements. The provisions of §721.185 apply to this section.

(3) Determining whether a specific use is subject to this section. The provisions of §721.1725(b)(1) apply to paragraph (a)(2)(i) of this section.

§721.11562 Formaldehyde, polymer with alkyl aryl ketone (generic).

(a) Chemical substance and significant new uses subject to reporting. (1) The chemical substance identified generically as formaldehyde, polymer with alkyl aryl ketone (PMN P-18-330) is subject to reporting under this section for the significant new uses described in paragraph (a)(2) of this section.

(2) The significant new uses are:

(i) Industrial, commercial, and consumer activities. Requirements as specified in §721.80(o).

(ii) Release to water. Requirements as specified in §721.90(a)(4), (b)(4), and (c)(4), where N=770.

(b) Specific requirements. The provisions of subpart A of this part apply to this section except as modified by this paragraph (b).

(1) Recordkeeping. Recordkeeping requirements as specified in §721.125(a) through (c), (i) and (k) are applicable to manufacturers and processors of this substance.

(2) Limitation or revocation of certain notification requirements. The provisions of §721.185 apply to this section.

§721.11563 Propanedioic acid, 1,3-dihexyl ester.

(a) Chemical substance and significant new uses subject to reporting. (1) The chemical substance identified as propanedioic acid, 1,3-dihexyl ester (PMN P-18-334; CAS No. 1431-37-4) is subject to reporting under this section for the significant new uses described in paragraph (a)(2) of this section.

(2) The significant new uses are:

(i) Industrial, commercial, and consumer activities. Requirements as specified in §721.80(g).

(ii) Release to water. Requirements as specified in §721.90(a)(4), (b)(4), and (c)(4), where N=3.

(b) Specific requirements. The provisions of subpart A of this part apply to this section except as modified by this paragraph (b).

(1) Recordkeeping. Recordkeeping requirements as specified in §721.125(a) through (c), (i) and (k) are applicable to manufacturers and processors of this substance.

(2) Limitation or revocation of certain notification requirements. The provisions of §721.185 apply to this section.

§721.11564 Propanedioic acid, 1,3-dicyclohexyl ester.

(a) Chemical substance and significant new uses subject to reporting. (1) The chemical substance identified as propanedioic acid, 1,3-dicyclohexyl ester (PMN P-18-335; CAS No. 1152-57-4) is subject to reporting under this section for the significant new uses described in paragraph (a)(2) of this section.

(2) The significant new uses are:

(i) Industrial, commercial, and consumer activities. Requirements as specified in §721.80(g).

(ii) Release to water. Requirements as specified in §721.90(a)(4), (b)(4), and (c)(4), where N=6.

(b) Specific requirements. The provisions of subpart A of this part apply to this section except as modified by this paragraph (b).

(1) Recordkeeping. Recordkeeping requirements as specified in §721.125(a) through (c), (i) and (k) are applicable to manufacturers and processors of this substance.

(2) Limitation or revocation of certain notification requirements. The provisions of §721.185 apply to this section.

§721.11565Propanedioic acid, 2,2-bis(hydroxymethyl)-, 1,3-dicyclohexyl ester.

(a) Chemical substance and significant new uses subject to reporting. (1) The chemical substance identified as propanedioic acid, 2,2- bis(hydroxymethyl)-, 1,3-dicyclohexyl ester (PMN P-18-337; CAS No. 2222732-46-7) is subject to reporting under this section for the significant new uses described in paragraph (a)(2) of this section.

(2) The significant new uses are:

(i) Release to water. Requirements as specified in §721.90(a)(4), (b)(4), and (c)(4), where N=95.

(ii) [Reserved]

(b) Specific requirements. The provisions of subpart A of this part apply to this section except as modified by this paragraph (b).

(1) Recordkeeping. Recordkeeping requirements as specified in §721.125(a) through (c) and (k) are applicable to manufacturers and processors of this substance.

(2) Limitation or revocation of certain notification requirements. The provisions of §721.185 apply to this section.

[FR Doc. 2021-24789 Filed 11-12-21; 8:45 am]

BILLING CODE 6560-50-P

2023-12-07T06:00:00Z

EPA’s Fall 2023 Regulatory Agenda released

The Environmental Protection Agency’s (EPA’s) Fall 2023 Semiannual Agenda of Regulatory and Deregulatory Actions was released on December 7. The agenda shows the agency’s upcoming regulatory actions and where they are in the rulemaking process.

The agenda includes major updates, such as:

Finalizing a rule under the Clean Water Act by September 2024 to require facilities near navigable water that store listed hazardous substances above a threshold amount to prepare facility response plans and implement response training for spills;
Moving the Greenhouse Gas Emissions Standards for Heavy-Duty Vehicles — Phase 3 rule to the final rule stage, with an expected publishing date in March 2024;
Proposing a rule in December 2023 that, if finalized, would list specific per- and polyfluoroalkyl substances (PFAS) as hazardous constituents under the Resource Conservation and Recovery Act, which would subject them to corrective action requirements at hazardous waste treatment, storage, and disposal facilities; and
Proposing a rule in April 2024 to clarify how water quality trading and other market-based approaches may be used by the National Pollutant Discharge Elimination System permitting authorities in permits to meet applicable water quality standards.

While you will want to review the entire agenda to learn about all the rulemakings on EPA’s docket, this article highlights just some of the major rules we are watching closely. Also, please note that the agenda dates reflect tentative dates by which the agency hopes to publish the rulemakings in the Federal Register.

Final Rule Stage
Projected publication date	Title
December 2023	Accidental Release Prevention Requirements: Risk Management Program Under the Clean Air Act; Safer Communities by Chemical Accident Prevention
January 2024	PFAS National Primary Drinking Water Regulation Rulemaking
March 2024	Designating PFOA and PFOS as CERCLA Hazardous Substances
March 2024	Greenhouse Gas Emissions Standards for Heavy-Duty Vehicles — Phase 3
September 2024	Clean Water Act Hazardous Substance Facility Response Plans
Proposed Rule Stage
Projected publication date of Notice of Proposed Rulemaking	Title
December 2023	Listing of PFOA, PFOS, PFBS, and GenX as Resource Conservation and Recovery Act (RCRA) Hazardous Constituents
December 2023	Supplemental Air Plan Actions: Interstate Transport of Air Pollution for the 2015 8-hour Ozone NAAQS and Supplemental Federal "Good Neighbor Plan" Requirements for the 2015 8-hour Ozone NAAQS
February 2024	Addition of Certain Per- and Polyfluoroalkyl Substances (PFAS) to the Toxics Release Inventory (TRI)
April 2024	Market-Based Approaches Under the National Pollutant Discharge Elimination System (NPDES) Program
April 2024	Review of the Secondary National Ambient Air Quality Standards for Ecological Effects of Oxides of Nitrogen, Oxides of Sulfur and Particulate Matter
Pre-Rule Stage
Projected publication date or other action	Title
February 2024 (End of Advanced Notice of Proposed Rulemaking comment period)	Potential Emergency Planning and Community Right-to-Know Act Animal Waste Reporting Rule
April 2024 (Notice)	Petition to Delist Stationary Combustion Turbines From the List of Categories of Major Sources of Hazardous Air Pollutants

Operating Permits Clean Air Act Title V Permits CAA Clean Water CWA Waste Water SMS Trial 3-Month SMS Essential SMS Advanced SMS Trial Enterprise SMS Trial SMS Premium

2023-12-06T06:00:00Z

EPA Proposed Rule: Revisions to National Primary Drinking Water Regulations for Lead and Copper

The U.S. Environmental Protection Agency (EPA) is proposing revisions to the National Primary Drinking Water Regulation (NPDWR) for lead and copper under the authority of the Safe Drinking Water Act (SDWA). In this document, EPA is proposing to require water systems to replace lead service lines, remove the lead trigger level, reduce the lead action level to 0.010 mg/L, and strengthen tap sampling procedures, among other changes that would improve public health protection and simplify the rule relative to the 2021 Lead and Copper Rule Revisions (LCRR). This proposed rule provides improvements in the additional following areas: corrosion control treatment, public education and consumer awareness, requirements for small systems, and sampling in schools and child care facilities. EPA's proposed rule aims to address potential disproportionate impacts of lead in drinking water in communities, including through proposed lead service line replacement and public education, among other areas of the proposed rule.

DATES: Comments must be received on or before February 5, 2024, published in the Federal Register December 6, 2023, page 84878.

View proposed rule.

SDWA Clean Water Lead Based Paint CWA Pb SMS Advanced SMS Essential SMS Premium SMS Trial SMS Trial Enterprise r40CFR141 r40CFR142 40 CFR 141 40 CFR 142 40 CFR 141 National primary drinking water regulations 40 CFR 142 National primary drinking water regulations implementation

2023-12-06T06:00:00Z

EPA Partial Withdrawal of Final Rule: Technical Corrections to August 9, 2023 Solid and Hazardous Waste Rule

Because the EPA received adverse comment on eight amendments in the direct final rule published on August 9, 2023, we are withdrawing amendments to specific provisions through correction to the direct final rule.

DATES: This correction is effective December 7, 2023, published in the Federal Register December 6, 2023, page 84710.

View final rule.

§261.4 Exclusions.
(a)(25)(i)(I)	Revised	View text
(a)(25)(vi) and (vii)	Revised	View text
(a)(25)(xi)(D)	Revised	View text
§262.11 Hazardous waste determination and recordkeeping.
(d) introductory text	Revised	View text
(g)	Revised	View text
§262.16 Conditions for exemption for a small quantity generator that accumulates hazardous waste.
Introductory text	Revised	View text
(b) introductory text	Revised	View text
(b)(5) introductory text	Revised	View text
(b)(8)(iv)(A) and (B)	Revised	View text
§262.17 Conditions for exemption for a large quantity generator that accumulates hazardous waste.
Introductory text	Revised	View text
(a)(2)	Revised	View text
(a)(7)(i)(A)	Revised	View text
(a)(8)(iii)(A)(4)	Revised	View text
(b)	Revised	View text
(c) introductory text	Revised	View text
(d)	Revised	View text
(e)	Revised	View text
(f) introductory text	Revised	View text
§262.232 Conditions for a generator managing hazardous waste from an episodic event.
(a)(5)	Revised	View text
(b)(4) introductory text	Revised	View text
(b)(4)(ii)(C)	Revised	View text
§266.508 Shipping non-creditable hazardous waste pharmaceuticals from a healthcare facility of evaluated hazardous waste pharmaceuticals from a reverse distributor.
(a)(1)(iii)(C)	Revised	View text
(a)(2)(i)	Revised	View text

Previous Text

§261.4 Exclusions.

* * * *

(a)(25)(i)(I) The name of any countries of transit through which the hazardous secondary material will be sent and a description of the approximate length of time it will remain in such countries and the nature of its handling while there (for purposes of this section, the terms "EPA Acknowledgment of Consent", "country of import" and "country of transit" are used as defined in 40 CFR 262.81 with the exception that the terms in this section refer to hazardous secondary materials, rather than hazardous waste):

* * * *

(a)(25)(vi) The export of hazardous secondary material under this paragraph (a)(25) is prohibited unless the hazardous secondary material generator receives from EPA an EPA Acknowledgment of Consent documenting the consent of the country of import to the receipt of the hazardous secondary material. Where the country of import objects to receipt of the hazardous secondary material or withdraws a prior consent, EPA will notify the hazardous secondary material generator in writing. EPA will also notify the hazardous secondary material generator of any responses from countries of transit.

(a)(25)(vii) Prior to each shipment, the hazardous secondary material generator or a U.S. authorized agent must:

(A) Submit Electronic Export Information (EEI) for each shipment to the Automated Export System (AES) or its successor system, under the International Trade Data System (ITDS) platform, in accordance with 15 CFR 30.4(b).

(B) Include the following items in the EEI, along with the other information required under 15 CFR 30.6:

(1) EPA license code;

(2) Commodity classification code per 15 CFR 30.6(a)(12);

(3) EPA consent number;

(4) Country of ultimate destination per 15 CFR 30.6(a)(5);

(5) Date of export per 15 CFR 30.6(a)(2);

(6) Quantity of waste in shipment and units for reported quantity, if required reporting units established by value for the reported commodity classification number are in units of weight or volume per 15 CFR 30.6(a)(15); or

(7) EPA net quantity reported in units of kilograms, if required reporting units established by value for the reported commodity classification number are not in units of weight or volume.

* * * *

(a)(25)(xi)(D) By reclaimer and intermediate facility, for each hazardous secondary material exported, a description of the hazardous secondary material and the EPA hazardous waste number that would apply if the hazardous secondary material was managed as hazardous waste, the DOT hazard class, the name and U.S. EPA ID number (where applicable) for each transporter used, the consent number(s) under which the hazardous secondary material was shipped and for each consent number, the total amount of hazardous secondary material shipped and the number of shipments exported during the calendar year covered by the report;

§262.11 Hazardous waste determination and recordkeeping.§262.11 Hazardous waste determination and recordkeeping.

* * * *

(d) The person then must also determine whether the waste exhibits one or more hazardous characteristics as identified in subpart Cof 40 CFR part 261 by following the procedures in paragraph (d)(1) or (2) of this section, or a combination of both. Where a waste is both listed and exhibits a characteristic, the listed waste code is sufficient, provided that the listed waste code addresses the constituents and/or properties that cause the waste to exhibit the characteristic. Otherwise, the waste codes must be identified for all applicable listings and characteristics.

* * * *

(g) Identifying hazardous waste numbers for small and large quantity generators. Consistent with paragraph (d) of this section, if the waste is determined to be hazardous, small quantity generators and large quantity generators must identify all applicable EPA hazardous waste numbers (EPA hazardous waste codes) in subparts C and D of part 261 of this subchapter. Prior to shipping the waste off site, the generator also must mark its containers with all applicable EPA hazardous waste numbers (EPA hazardous waste codes) according to §262.32.

§262.16 Conditions for exemption for a small quantity generator that accumulates hazardous waste.

A small quantity generator may accumulate hazardous waste on site without a permit or interim status, and without complying with the requirements of parts 124, 264 through 267, and 270 of this chapter, or the notification requirements of section 3010 of RCRA for treatment, storage, and disposal facilities, provided that all the conditions for exemption listed in this section are met:

* * * *

(b) Accumulation. The generator accumulates hazardous waste on site for no more than 180 days, unless in compliance with the conditions for exemption for longer accumulation in paragraphs (c), (d), and (e) of this section. The following accumulation conditions also apply:

* * * *

(b)(5) Accumulation of hazardous waste in containment buildings. If the waste is placed in containment buildings, the small quantity generator must comply with 40 CFR part 265 subpart DD The generator must label its containment buildings with the words "Hazardous Waste" in a conspicuous place easily visible to employees, visitors, emergency responders, waste handlers, or other persons on site and also in a conspicuous place provide an indication of the hazards of the contents (examples include, but are not limited to, the applicable hazardous waste characteristic(s) (i.e., ignitable, corrosive, reactive, toxic); hazard communication consistent with the Department of Transportation requirements at 49 CFR part 172, subpart E(labeling) or subpart F(placarding); a hazard statement or pictogram consistent with the Occupational Safety and Health Administration Hazard Communication Standard at 29 CFR 1910.1200; or a chemical hazard label consistent with the National Fire Protection Association code 704). The generator must also maintain:

* * * *

(b)(8)(iv)(A) Whenever hazardous waste is being poured, mixed, spread, or otherwise handled, all personnel involved in the operation must have immediate access (e.g., direct or unimpeded access) to an internal alarm or emergency communication device, either directly or through visual or voice contact with another employee, unless such a device is not required under paragraph (b)(8)(ii) of this section.

(b)(8)(iv)(B) In the event there is just one employee on the premises while the facility is operating, the employee must have immediate access (e.g., direct or unimpeded access) to a device, such as a telephone (immediately available at the scene of operation) or a hand-held two-way radio, capable of summoning external emergency assistance, unless such a device is not required under paragraph (b)(8)(ii) of this section.

§262.17 Conditions for exemption for a large quantity generator that accumulates hazardous waste.

A large quantity generator may accumulate hazardous waste on site without a permit or interim status, and without complying with the requirements of parts 124, 264 through 267, and 270 of this chapter, or the notification requirements of section 3010 of RCRA for treatment, storage, and disposal facilities, provided that all of the following conditions for exemption are met:

* * * *

(a)(2) Accumulation of hazardous waste in tanks. If the waste is placed in tanks, the large quantity generator must comply with the applicable requirements of subpart J (except §§265.197(c) and 265.200 of this subchapter) as well as the applicable requirements of 40 CFR part 265, subparts AA through CC.

* * * *

(a)(7)(i)(A) Facility personnel must successfully complete a program of classroom instruction, online training (e.g., computer-based or electronic), or on-the-job training that teaches them to perform their duties in a way that ensures compliance with this part. The large quantity generator must ensure that this program includes all the elements described in the document required under paragraph (a)(7)(iv)(C) of this section.

* * * *

(a)(8)(iii)(A)(4) If the generator demonstrates that any contaminated soils and wastes cannot be practicably removed or decontaminated as required in paragraph (a)(8)(iii)(A)(2) of this section, then the waste accumulation unit is considered to be a landfill and the generator must close the waste accumulation unit and perform post-closure care in accordance with the closure and post-closure care requirements that apply to landfills (§265.310 of this subchapter). In addition, for the purposes of closure, post-closure, and financial responsibility, such a waste accumulation unit is then considered to be a landfill, and the generator must meet all of the requirements for landfills specified in 40 CFR part 265, subparts G and H.

* * * *

(b) Accumulation time limit extension. A large quantity generator who accumulates hazardous waste for more than 90 days is subject to the requirements of 40 CFR parts 124, 264 through 268, and part 270 of this chapter, and the notification requirements of section 3010 of RCRA for treatment, storage, and disposal facilities, unless it has been granted an extension to the 90-day period. Such extension may be granted by EPA if hazardous wastes must remain on site for longer than 90 days due to unforeseen, temporary, and uncontrollable circumstances. An extension of up to 30 days may be granted at the discretion of the Regional Administrator on a case-by-case basis.

(c) Accumulation of F006. A large quantity generator who also generates wastewater treatment sludges from electroplating operations that meet the listing description for the EPA hazardous waste number F006, may accumulate F006 waste on site for more than 90 days, but not more than 180 days without being subject to parts 124, 264 through 267, and 270 of this chapter, and the notification requirements of section 3010 of RCRA for treatment, storage, and disposal facilities, provided that it complies with all of the following additional conditions for exemption:

(d) F006 transported over 200 miles. A large quantity generator who also generates wastewater treatment sludges from electroplating operations that meet the listing description for the EPA hazardous waste number F006, and who must transport this waste, or offer this waste for transportation, over a distance of 200 miles or more for off-site metals recovery, may accumulate F006 waste on site for more than 90 days, but not more than 270 days without being subject to parts 124, 264 through 267, and 270 of this chapter, and the notification requirements of section 3010 of RCRA for treatment, storage, and disposal facilities, if the large quantity generator complies with all of the conditions for exemption of paragraphs (c)(1) through (4) of this section.

(e) F006 accumulation time extension. A large quantity generator accumulating F006 in accordance with paragraphs (c) and (d) of this section who accumulates F006 waste on site for more than 180 days (or for more than 270 days if the generator must transport this waste, or offer this waste for transportation, over a distance of 200 miles or more), or who accumulates more than 20,000 kilograms of F006 waste on site is an operator of a storage facility and is subject to the requirements of 40 CFR parts 124, 264, 265, 267, and 270, and the notification requirements of section 3010 of RCRA for treatment, storage, and disposal facilities, unless the generator has been granted an extension to the 180-day (or 270-day if applicable) period or an exception to the 20,000 kilogram accumulation limit. Such extensions and exceptions may be granted by EPA if F006 waste must remain on site for longer than 180 days (or 270 days if applicable) or if more than 20,000 kilograms of F006 waste must remain on site due to unforeseen, temporary, and uncontrollable circumstances. An extension of up to 30 days or an exception to the accumulation limit may be granted at the discretion of the Regional Administrator on a case-by-case basis.

(f) Consolidation of hazardous waste received from very small quantity generators. Large quantity generators may accumulate on site hazardous waste received from very small quantity generators under control of the same person (as defined in §260.10 of this subchapter), without a storage permit or interim status and without complying with the requirements of parts 124, 264 through 268, and 270 of this chapter, and the notification requirements of section 3010 of RCRA for treatment, storage, and disposal facilities, provided that they comply with the following conditions. "Control," for the purposes of this section, means the power to direct the policies of the generator, whether by the ownership of stock, voting rights, or otherwise, except that contractors who operate generator facilities on behalf of a different person shall not be deemed to "control" such generators.

[Change Notice] [Previous Text]

§262.232 Conditions for a generator managing hazardous waste from an episodic event.

* * * *

(a)(5) The very small quantity generator must comply with the hazardous waste manifest provisions of subpart Bof this part and the recordkeeping provisions for small quantity generators in §262.44 when it sends its episodic event hazardous waste off site to a designated facility, as defined in §260.10 of this subchapter.

* * * *

(b)(4) Accumulation by small quantity generators. A small quantity generator is prohibited from accumulating hazardous wastes generated from an episodic event on drip pads and in containment buildings. When accumulating hazardous waste generated from an episodic event in containers and tanks, the following conditions apply:

* * * *

(b)(4)(ii)(C) Use inventory logs, monitoring equipment or other records to identify the date upon which each episodic event begins; and

§266.508 Shipping non-creditable hazardous waste pharmaceuticals from a healthcare facility of evaluated hazardous waste pharmaceuticals from a reverse distributor.

* * * *

(a)(1)(iii)(C) Lab packs that will be incinerated in compliance with §268.42(c) of this subchapter are not required to be marked with EPA hazardous waste numbers (i.e., hazardous waste codes), except D004, D005, D006, D007, D008, D010, and D011, where applicable. A nationally recognized electronic system, such as bar coding or radio frequency identification tag, may be used to identify the applicable EPA hazardous waste numbers (i.e., hazardous waste codes).

* * * *

(a)(2)(i) A healthcare facility shipping non-creditable hazardous waste pharmaceuticals is not required to list all applicable EPA hazardous waste numbers (i.e., hazardous waste codes) in Item 13 of EPA Form 8700—22.

2023-12-01T06:00:00Z

EPA: Removal of Affirmative Defense Provisions From the National Emission Standards for Hazardous Air Pollutants for the Oil and Natural Gas Production Facility and Natural Gas Transmission and Storage Facility Source Categories

SUMMARY: The EPA is proposing amendments to the National Emission Standards for Hazardous Air Pollutants for the oil and gas industry issued under the Clean Air Act. Specifically, the EPA is proposing to remove the affirmative defense provisions of the National Emission Standards for Hazardous Air Pollutants for both the Oil and Natural Gas Production source category and the Natural Gas Transmission and Storage source category.

DATES: This proposed rule is published in the Federal Register December 1, 2023, page 83889.

View proposed rule.

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Most Recent Highlights In Transportation

2023-11-30T06:00:00Z

Are you as focused on combustible dusts as OSHA?

If you think you may have combustible dusts lurking in your facilities, you’ll want to know about recent updates to OSHA’s Combustible Dust National Emphasis Program (NEP). Have you been added to the list of higher-likelihood industries?

What are combustible dusts?

Employers are required to inspect their facilities for processes that generate or use combustible dusts and address associated fire, deflagration, and explosion hazards. So, what constitutes combustible dust? Combustible dusts are fine particles that present an explosion hazard when suspended in air under certain conditions.

The following combustible dusts can cause catastrophic loss of life, severe injuries, and building destruction:

Metal dust such as aluminum, magnesium, and some forms of iron dusts;
Wood dust;
Coal and other carbon dusts, including carbon black;
Plastic dust, phenolic resins, and additives;
Rubber dust;
Biosolids;
Some textile materials;
Organic dust such as sugar, flour, paper, and soap; and
Dried blood.

Protecting workers from combustible dusts

Many combustible dust incidents occur without the employer or workers realizing they are in danger. They were either unaware of the potential for dust explosions or failed to recognize the serious nature of dust explosion hazards.

Hazard assessments must be performed to identify all physical and health hazards associated with combustible dusts and ensure Safety Data Sheets (SDSs) list potential exposures and controls. Employers must anticipate types of operations, material use, or downstream material processing that can generate or potentially generate combustible dusts. Operations and uses include:

Abrasive blasting;
Cutting, grinding, polishing, or crushing of materials;
Conveying, mixing, sifting, or screening dry materials; and
Building up dried residue from processing wet materials.

How easily particles ignite, or cause explosions, is dependent upon the particle size, shape, moisture content or humidity, and available oxygen. These physical characteristics can change during manufacturing, use, or while the material is being processed. The regulation at 1910.272(j)(2)(ii) requires the removal of any fugitive grain dust accumulations whenever they exceed ⅛ inch (0.32 cm) at priority housekeeping areas or to demonstrate and assure, through the development and implementation of the housekeeping program, that equivalent protection is provided. The thickness of dust must be no more than the thickness of a dime. Essentially, if a footprint can be made in the dust, there’s too much.

What changed with the NEP?

OSHA replaced its March 2008 directive with a revised NEP on January 30, 2023. The NEP added several industries with a higher likelihood of having combustible dust hazards or that have experienced combustible dust-related fatalities/catastrophes. Industries added include:

311812 – Commercial Bakeries
325910 – Printing Ink Manufacturing
321912 – Cut Stock, Resawing Lumber, and Planning
316110 – Leather and Hide Tanning and Finishing
321214 – Truss Manufacturing
424510 – Grain and Field Bean Merchant Wholesalers

Keys to Remember

Too often, employers and workers were unaware of the potential for dust explosions or failed to recognize the serious nature of dust explosion hazards. OSHA has added some industries with a higher likelihood of having combustible dust hazards to the Combustible Dust NEP.

Construction Manufacturing (31/Food/Textiles)Manufacturing (32/Non-Durable)Agriculture Manufacturing (33/Durable)Hazardous Dusts Cotton Dusts Explosive Dusts

2023-11-27T06:00:00Z

A particulate matter: Stricter emissions limits placed on lead recyclers

The Environmental Protection Agency (EPA) published a final rule for New Source Performance Standards (NSPS) for secondary lead smelters, which include facilities that recycle lead-bearing scrap material, typically lead acid batteries. The final rule imposes stricter regulations on particulate matter (PM) emissions and adds testing, recordkeeping, and reporting requirements.

Who’s impacted?

Secondary lead smelters subject to the NSPS that were constructed, reconstructed, or modified after June 11, 1973, and on or before December 1, 2022, are regulated by 40 CFR 60 Subpart L. While PM emissions and opacity standards remain the same, the final rule adds these requirements:

Initial performance tests of PM emissions and opacity,
Periodic performance tests of PM emissions (every 12 months or every 24 months if conditions are met),
Electronic submission of performance tests through EPA’s Central Data Exchange,
Monitoring, and
Recordkeeping and reporting.

Regulated secondary lead smelters that are constructed, reconstructed, or modified after December 1, 2022, are regulated by the newly added Subpart La, which requires the same additions to Subpart L as well as:

Stricter PM emissions and opacity standards that apply at all times (including periods of startup, shutdown, and malfunction),
PM standards for all process fugitive emission sources, and
Periodic performance tests of opacity.

EPA also added Method 22 as an alternative for showing compliance with opacity standards in efforts to reduce testing burdens.

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2023-11-24T06:00:00Z

EPA: Decabromodiphenyl Ether and Phenol, Isopropylated Phosphate (3:1); Revision to the Regulation of Persistent, Bioaccumulative, and Toxic Chemicals Under the Toxic Substances Control Act (TSCA)

SUMMARY: The Environmental Protection Agency (EPA) is proposing revisions to the regulations for decabromodiphenyl ether (decaBDE) and phenol, isopropylated phosphate (3:1) (PIP (3:1)), two of the five persistent, bioaccumulative, and toxic (PBT) chemicals addressed in final rules issued under the Toxic Substances Control Act (TSCA) in January 2021. After receiving additional comments following the issuance of the 2021 PBT final rules, the Agency has determined that revisions to the decaBDE and PIP (3:1) regulations are necessary to address implementation issues and to reduce further exposures. As required under TSCA, these proposed requirements would, if finalized, reduce the potential for exposures to humans and the environment to decaBDE and PIP (3:1) to the extent practicable. The Agency is not proposing to revise the existing regulations for the other three PBT chemicals (2,4,6-TTBP, HCBD, and PCTP) at this time.

DATES: This proposed rule is published in the Federal Register November 24, 2023, page 82287.

View proposed rule.

TSCA SMS Trial Enterprise SMS Advanced SMS Trial SMS Essential 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

2023-11-20T06:00:00Z

EPA: New Source Performance Standards Review for Secondary Lead Smelters

SUMMARY: The Environmental Protection Agency (EPA) is finalizing amendments to the new source performance standards (NSPS) for secondary lead smelters pursuant to the periodic review required by the Clean Air Act (CAA). Specifically, the EPA is finalizing revisions to the NSPS that applies to affected secondary lead smelters constructed, reconstructed, or modified after December 1, 2022 (NSPS subpart La). The EPA is also finalizing amendments to the NSPS for secondary lead smelters constructed, reconstructed, or modified after June 11, 1973, and on or before December 1, 2022, (NSPS subpart L). In addition, we are finalizing the use of EPA Method 22 (Visual Determination of Fugitive Emissions from Material Sources and Smoke Emissions from Flares) as an alternative for demonstrating compliance with the opacity limit.

DATES: This final rule is effective on November 20, 2023, published in the Federal Register November 20, 2023, page 80594.

View final rule.

§60.17 Incorporations by reference.
(h)(206)	Revised	View text
(j)(2)	Revised	View text
Subpart L - Standards of Performance for Secondary Lead Smelters for Which Construction, Reconstruction, or Modification Commenced After June 11, 1973, and On or Before December 1, 2022
Subpart heading	Revised	View text
§60.120 Applicability and designation of affected facility.
(b)	Revised	View text
§60.122 Standard for particulate matter.
(a)(1)	Revised	View text
§60.123 Test methods and procedures.
Entire section	Revised	View text
§60.124 Monitoring requirements.
Entire section	Added	View text
§60.125 Notification, recordkeeping, and reporting requirements.
Entire section	Added	View text
Subpart La—Standards of Performance for Secondary Lead Smelters for Which Construction, Reconstruction, or Modification Commenced After December 1, 2022
Entire subpart	Added	View text

View Text

§60.17 Incorporations by reference.

* * * * *

(h) * * *

(206) ASTM D7520–16, Standard Test Method for Determining the Opacity of a Plume in the Outdoor Ambient Atmosphere, approved April 1, 2016; IBR approved for §§60.271(k); and (b); 60.273(c) and (d); 60.274(h); 60.275(e); 60.276(c); 60.271a; 60.272a(a) and (b); 60.273a(c) and (d); 60.274a(h); 60.275a(e); 60.276a(f); 60.271b; 60.272b(a) and (b); 60.273b(c) and (d); 60.274b(h); 60.275b(e); 60.276b(f); 60.374a(d).

* * * * *

(j) * * *

(2) EPA–454/R–98–015, Office of Air Quality Planning and Standards (OAQPS), Fabric Filter Bag Leak Detection Guidance, September 1997, https://nepis.epa.gov/Exe/ZyPDF.cgi?Dockey=2000D5T6.PDF; IBR approved for §§60.273(e); 60.273a(e); 60.273b(e); 60.373a(b); 60.2145(r); 60.2710(r); 60.4905(b); 60.5225(b).

* * * * *

Subpart L - Standards of Performance for Secondary Lead Smelters

§60.120 Applicability and designation of affected facility.

* * * * *

(b) Any facility under paragraph (a) of this section that commences construction or modification after June 11, 1973, is subject to the requirements of this subpart.

§60.122 Standard for particulate matter.

(a) * * *

(1) Contain particulate matter in excess of 50 mg/dscm (0.022 gr/dscf).

* * * * *

§60.123 Test methods and procedures.

(a) In conducting the performance tests required in §60.8, the owner or operator shall use as reference methods and procedures the test methods in appendix A of this part or other methods and procedures as specified in this section, except as provided in §60.8(b).

(b) The owner or operator shall determine compliance with the particulate matter standards in §60.122 as follows:

(1) Method 5 shall be used to determine the particulate matter concentration during representative periods of furnace operation, including charging and tapping. The sampling time and sample volume for each run shall be at least 60 minutes and 0.90 dscm (31.8 dscf).

(2) Method 9 and the procedures in §60.11 shall be used to determine opacity.

Clean Air Act CAA SMS Essential SMS Premium SMS Trial Enterprise SMS Advanced SMS Trial r40CFR60 40 CFR 60

2023-11-17T06:00:00Z

EPA: Adoption and Submittal of State Plans for Designated Facilities: Implementing Regulations Under Clean Air Act Section 111(d)

SUMMARY: The Environmental Protection Agency (EPA) is finalizing amendments to the regulations that govern the processes and timelines for state and Federal plans to implement emission guidelines under Clean Air Act (CAA) New Source Performance Standards for existing sources (the “implementing regulations”). The amendments include revisions to the timing requirements for state and the EPA actions related to plans; the addition of mechanisms to improve flexibility and efficiency in plan processes; and new requirements for demonstration of timely meaningful engagement with pertinent stakeholders—including, but not limited to, industry, small businesses, and communities most affected by and vulnerable to the impacts of the plan. This action additionally provides a process for states' consideration of `remaining useful life and other factors' (RULOF) in applying a standard of performance; amends the definition of standard of performance in the implementing regulations; and clarifies compliance flexibilities that states may choose to incorporate into state plans, including trading or averaging. Finally, this action adds requirements for the electronic submission of state plans and provides several other clarifications and minor revisions to the implementing regulations.

DATES: This final rule is effective on December 18, 2023, published in the Federal Register November 17, 2023, page 80480.

View final rule.

§60.1 Applicability.
(a)	Revised	View Text
§60.20a Applicability.
(a) introductory text	Revised	View Text
§60.21a Definitions.
(e), (f)	Revised	View Text
(k), (l)	Added	View Text
§60.22a Publication of emission guidelines.
(b)(3), (c)	Revised	View Text
§60.23a Adoption and submittal of State plans; public hearings.
(a)(1)	Revised	View Text
(a)(3)	Added	View Text
(b)	Revised	View Text
(i)	Added	View Text
§60.24a Standards of performance and compliance schedules.
(b)-(f)	Revised	View Text
(g)-(i)	Added	View Text
§60.25a Emission inventories, source surveillance, reports.
(a)	Revised	View Text
§60.27a Actions by the Administrator.
(a)	Revised	View Text
(b)(1)-(2)	Added	View Text
(c)-(d)	Revised	View Text
(f) introductory text	Revised	View Text
(g)(1)	Revised	View Text
(g)(2)(viii)	Revised	View Text
(g)(2)(ix), (x)	Redesignated	View Text
(h)-(j)	Added	View Text
§60.28a Plan revisions by the State.
(a)	Revised	View Text
§60.29a Plan revisions by the Administrator.
Introductory text	Revised	View Text

Previous Text

§60.1 Applicability.

(a) Except as provided in subparts B and C, the provisions of this part apply to the owner or operator of any stationary source which contains an affected facility, the construction or modification of which is commenced after the date of publication in this part of any standard (or, if earlier, the date of publication of any proposed standard) applicable to that facility.

§60.20a Applicability.

(a) The provisions of this subpart apply upon publication of a final emission guideline under §60.22a(a) if implementation of such final guideline is ongoing as of July 8, 2019 or if the final guideline is published after July 8, 2019.

§60.21a Definitions.

* * * *

(e) Emission guideline means a guideline set forth in subpart C of this part, or in a final guideline document published under §60.22a(a), which reflects the degree of emission limitation achievable through the application of the best system of emission reduction which (taking into account the cost of such reduction and any non-air quality health and environmental impact and energy requirements) the Administrator has determined has been adequately demonstrated for designated facilities.

(f) Standard of performance means a standard for emissions of air pollutants which reflects the degree of emission limitation achievable through the application of the best system of emission reduction which (taking into account the cost of achieving such reduction and any nonair quality health and environmental impact and energy requirements) the Administrator determines has been adequately demonstrated, including, but not limited to a legally enforceable regulation setting forth an allowable rate or limit of emissions into the atmosphere, or prescribing a design, equipment, work practice, or operational standard, or combination thereof.

§60.22a Publication of emission guidelines.

* * * *

(b)(3) Information on the degree of emission limitation which is achievable with each system, together with information on the costs, nonair quality health environmental effects, and energy requirements of applying each system to designated facilities.

* * * *

(c) The emission guidelines and compliance times referred to in paragraph (b)(5) of this section will be proposed for comment upon publication of the draft guideline document, and after consideration of comments will be promulgated in subpart C of this part with such modifications as may be appropriate.

§60.23a Adoption and submittal of State plans; public hearings.

(a)(1) Unless otherwise specified in the applicable subpart, within three years after notice of the availability of a final emission guideline is published under §60.22a(a), each State shall adopt and submit to the Administrator, in accordance with §60.4, a plan for the control of the designated pollutant to which the emission guideline applies.

* * * *

(b) If no designated facility is located within a State, the State shall submit a letter of certification to that effect to the Administrator within the time specified in paragraph (a) of this section. Such certification shall exempt the State from the requirements of this subpart for that designated pollutant.

§60.24a Standards of performance and compliance schedules.

* * * *

(b) Standards of performance shall either be based on allowable rate or limit of emissions, except when it is not feasible to prescribe or enforce a standard of performance. The EPA shall identify such cases in the emission guidelines issued under §60.22a. Where standards of performance prescribing design, equipment, work practice, or operational standard, or combination thereof are established, the plan shall, to the degree possible, set forth the emission reductions achievable by implementation of such standards, and may permit compliance by the use of equipment determined by the State to be equivalent to that prescribed.

* * * *

(c) Except as provided in paragraph (e) of this section, standards of performance shall be no less stringent than the corresponding emission guideline(s) specified in subpart C of this part, and final compliance shall be required as expeditiously as practicable, but no later than the compliance times specified in an applicable subpart of this part.

(d) Any compliance schedule extending more than 24 months from the date required for submittal of the plan must include legally enforceable increments of progress to achieve compliance for each designated facility or category of facilities. Unless otherwise specified in the applicable subpart, increments of progress must include, where practicable, each increment of progress specified in §60.21a(h) and must include such additional increments of progress as may be necessary to permit close and effective supervision of progress toward final compliance.

(e) In applying a standard of performance to a particular source, the State may take into consideration factors, such as the remaining useful life of such source, provided that the State demonstrates with respect to each such facility (or class of such facilities):

(1) Unreasonable cost of control resulting from plant age, location, or basic process design;

(2) Physical impossibility of installing necessary control equipment; or

(3) Other factors specific to the facility (or class of facilities) that make application of a less stringent standard or final compliance time significantly more reasonable.

(f) Nothing in this subpart shall be construed to preclude any State or political subdivision thereof from adopting or enforcing:

(1) Standards of performance more stringent than emission guidelines specified in subpart C of this part or in applicable emission guidelines; or

(2) Compliance schedules requiring final compliance at earlier times than those specified in subpart C of this part or in applicable emission guidelines.

§60.25a Emission inventories, source surveillance, reports.

(a) Each plan shall include an inventory of all designated facilities, including emission data for the designated pollutants and information related to emissions as specified in appendix D to this part. Such data shall be summarized in the plan, and emission rates of designated pollutants from designated facilities shall be correlated with applicable standards of performance. As used in this subpart, “correlated” means presented in such a manner as to show the relationship between measured or estimated amounts of emissions and the amounts of such emissions allowable under applicable standards of performance.

§60.27a Actions by the Administrator.

* * * *

(a) The Administrator may, whenever he determines necessary, shorten the period for submission of any plan or plan revision or portion thereof.

(c) The Administrator will promulgate, through notice-and-comment rulemaking, a federal plan, or portion thereof, at any time within two years after the Administrator:

(1) Finds that a State fails to submit a required plan or plan revision or finds that the plan or plan revision does not satisfy the minimum criteria under paragraph (g) of this section; or

(2) Disapproves the required State plan or plan revision or any portion thereof, as unsatisfactory because the applicable requirements of this subpart or an applicable subpart under this part have not been met.

(d) The Administrator will promulgate a final federal plan as described in paragraph (c) of this section unless the State corrects the deficiency, and the Administrator approves the plan or plan revision, before the Administrator promulgates such federal plan.

* * * *

(f) Prior to promulgation of a federal plan under paragraph (d) of this section, the Administrator will provide the opportunity for at least one public hearing in either:

* * * *

(g)(1) General. Within 60 days of the Administrator's receipt of a state submission, but no later than 6 months after the date, if any, by which a State is required to submit the plan or revision, the Administrator shall determine whether the minimum criteria for completeness have been met. Any plan or plan revision that a State submits to the EPA, and that has not been determined by the EPA by the date 6 months after receipt of the submission to have failed to meet the minimum criteria, shall on that date be deemed by operation of law to meet such minimum criteria. Where the Administrator determines that a plan submission does not meet the minimum criteria of this paragraph, the State will be treated as not having made the submission and the requirements of §60.27a regarding promulgation of a federal plan shall apply.

* * * *

(g)(2)(viii) Compilation of public comments and the State's response thereto; and

§60.28a Plan revisions by the State.

(a) Any revision to a state plan shall be adopted by such State after reasonable notice and public hearing. For plan revisions required in response to a revised emission guideline, such plan revisions shall be submitted to the Administrator within three years, or shorter if required by the Administrator, after notice of the availability of a final revised emission guideline is published under §60.22a. All plan revisions must be submitted in accordance with the procedures and requirements applicable to development and submission of the original plan.

§60.29a Plan revisions by the Administrator.

After notice and opportunity for public hearing in each affected State, the Administrator may revise any provision of an applicable federal plan if:

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2023-11-16T06:00:00Z

EPA: National Emission Standards for Hazardous Air Pollutants: Rubber Tire Manufacturing

SUMMARY: The U.S. Environmental Protection Agency (EPA) is proposing amendments to the National Emission Standards for Hazardous Air Pollutants for Rubber Tire Manufacturing, as required by the Clean Air Act (CAA). To ensure that all emissions of hazardous air pollutants (HAP) from sources in the source category are regulated, the EPA is proposing emissions standards for the rubber processing subcategory of the rubber tire manufacturing industry, which is the only unregulated subcategory within the Rubber Tire Manufacturing source category.

DATES: Comments must be receive on or before January 2, 2024. Published in the Federal Register November 16, 2023, page 78692.

View proposed rule.

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2023-11-16T06:00:00Z

Are workers using the right respirator and cartridge?

OSHA requires employers to provide each worker with respiratory protection when such equipment is necessary to protect the worker’s health. Employers are required by 29 CFR 1910.134 to provide respirators that are applicable and suitable for the purpose intended. The employer must also establish and maintain a respiratory protection program that identifies respiratory hazards, controls, and proper personal protective equipment selection and use.

Respirators protect workers against insufficient oxygen, harmful dusts, smoke, gases, and vapors. These hazards may cause cancer, lung diseases, or even death. Without the correct respirator and corresponding cartridge, workers are at risk of exposure.

Does the type of respirator and cartridge really matter?

Respirators protect workers in two ways — by removing contaminants from the air or by supplying clean air to the user. Particulate respirators filter out airborne particles, while air-purifying respirators (APRs) with cartridges filter out chemicals and gases. Atmosphere-supplying respirators (ASRs provide air and include airline respirators, which use compressed air from a remote source, and self-contained breathing apparatus (SCBA), which contain their own air supply.

Each type of respirator has an assigned protection factor (APF) that indicates the level of protection expected from the respirator. APRs use filters, cartridges, or canisters to remove contaminants such as dusts, gases, vapors, and aerosols from the air. The cartridges or canisters have a filter, sorbent, catalyst, or combination of these items that removes specific contaminants from air that passes through the container. Per 1910.134(d)(3)(i)(A), employers are required to assign protection factors based on Table 1 in the standard.

Both the proper type and the service life of the cartridge are paramount. Respirators and cartridges must meet or exceed the required level of worker protection. Employers must ensure APFs are appropriate to the operation or task for which respirators are used.

Types of respirator cartridges

Employers and workers should always refer to container labels and safety data sheets (SDSs to determine the proper respiratory protection for each task. NIOSH-approved respirator cartridges are designated by color coding:

Black — used for organic vapors (OV)
Black/magenta (black/purple) — used for OV and high efficiency (HE) filter, P100 filters
Olive-brown — used for OV, acid gases, and ammonia
Olive-brown/magenta (olive-brown/purple) — used for OV, ammonia, acid gases, and HE filter, P100 filters
Magenta (purple) — used for HE filter, P100 filters
Yellow — used for OVs and acid gases
Yellow/magenta (yellow/purple) — used for OV, acid gases, and HE filter, P100 filters
White — used for acid gases
Bright green — used for ammonia

End of service life

Each respirator cartridge will have an end-of-service-life indicator (ESLI) warning the respirator user that the end of adequate respiratory protection is near. For example, the sorbent is approaching saturation or is no longer effective. Workers who use cartridges or canisters beyond the ESLI are placing themselves in harm’s way.

Keys to Remember

OSHA’s Respiratory Protection standard requires employers to protect workers from insufficient oxygen, harmful dusts, smoke, gases, and vapors. Respirators and corresponding cartridges must be of proper type and condition to ensure protection appropriate to the operation or task for which they’re used.

2023-11-08T06:00:00Z

EPA: Locomotives and Locomotive Engines; Preemption of State and Local Regulations

SUMMARY: The Environmental Protection Agency (EPA) is finalizing revisions to its regulations addressing preemption of State and local regulation of locomotives and engines used in locomotives. This rule implements a policy change to no longer categorically preempt certain State regulations of non-new locomotives and engines, aligning with the plain text of the Clean Air Act (CAA), and better achieving the legislative intent of providing for exclusive Federal regulation of new locomotives and new locomotive engines while preserving the ability of California and other States to adopt and enforce certain State standards regulating non-new locomotives and engines.

DATES: This final rule is effective on December 8, 2023, published in the Federal Register November 8, 2023, page 77004.

§1074.10 Scope of preemption.
(b)	Revised	View text
(c)	Added	View text
§1074.12 Scope of preemption-specific provisions for locomotives and locomotive engines
Entire section	Removed	View text
§1074.101 Procedures for California nonroad authorization requests.
(a)	Revised	View text

Previous Text

§1074.10 Scope of preemption.

* * * *

(b) For nonroad engines or vehicles other than those described in paragraph (a) of this section and §1074.12, States and localities are preempted from enforcing any standards or other requirements relating to control of emissions from nonroad engines or vehicles except as provided in subpart B of this part.

* * * *

§1074.101 Procedures for California nonroad authorization requests.

(a) California must request authorization from the Administrator to enforce its adopted standards and other requirements relating to control of emissions from nonroad engines or vehicles that are not preempted by §1074.10(a) or §1074.12. The request must include the record on which the state rulemaking was based.

* * * *

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2023-10-31T05:00:00Z

EPA: Trichloroethylene (TCE); Regulation under the Toxic Substances Control Act (TSCA)

SUMMARY: The Environmental Protection Agency (EPA) is proposing to address the unreasonable risk of injury to human health presented by trichloroethylene (TCE) under its conditions of use as documented in EPA's November 2020 Risk Evaluation for TCE and January 2023 revised risk determination for TCE pursuant to the Toxic Substances Control Act (TSCA). TCE is widely used as a solvent in a variety of industrial, commercial and consumer applications including for hydrofluorocarbon (HFC) production, vapor and aerosol degreasing, and in lubricants, greases, adhesives, and sealants. TSCA requires that when EPA determines a chemical substance presents unreasonable risk that EPA address by rule the unreasonable risk of injury to health or the environment and apply requirements to the extent necessary so the chemical no longer presents unreasonable risk. EPA determined that TCE presents an unreasonable risk of injury to health due to the significant adverse health effects associated with exposure to TCE, including non-cancer effects (liver toxicity, kidney toxicity, neurotoxicity, immunotoxicity, reproductive toxicity, and developmental toxicity) as well as cancer (liver, kidney, and non-Hodgkin lymphoma) from chronic inhalation and dermal exposures to TCE. TCE is a neurotoxicant and is carcinogenic to humans by all routes of exposure. The most sensitive adverse effects of TCE exposure are non-cancer effects (developmental toxicity and immunosuppression) for acute exposures and developmental toxicity and autoimmunity for chronic exposures. To address the identified unreasonable risk, EPA is proposing to: prohibit all manufacture (including import), processing, and distribution in commerce of TCE and industrial and commercial use of TCE for all uses, with longer compliance timeframes and workplace controls for certain processing and industrial and commercial uses (including proposed phaseouts and time-limited exemptions); prohibit the disposal of TCE to industrial pre-treatment, industrial treatment, or publicly owned treatment works, with a time-limited exemption for cleanup projects; and establish recordkeeping and downstream notification requirements.

DATES: Comments must be received on or before December 15, 2023, published in the Federal Register October 31, 2023, page 74712.

View proposed rule.

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2023-10-31T05:00:00Z

EPA: Changes to Reporting Requirements for Per- and Polyfluoroalkyl Substances and to Supplier Notifications for Chemicals of Special Concern; Community Right-to-Know Toxic Chemical Release Reporting

SUMMARY: The Environmental Protection Agency (EPA) is adding per- and polyfluoroalkyl substances (PFAS) subject to reporting under the Emergency Planning and Community Right-to-Know Act (EPCRA) and the Pollution Prevention Act (PPA) pursuant to the National Defense Authorization Act for Fiscal Year 2020 (NDAA) to the list of Lower Thresholds for Chemicals of Special Concern (chemicals of special concern). These PFAS already have a lower reporting activity threshold of 100 pounds. The addition of these PFAS to the list of chemicals of special concern means such PFAS are subject to the same reporting requirements as other chemicals of special concern ( i.e., it eliminates the use of the de minimis exemption and the option to use Form A and would limit the use of range reporting for PFAS). Removing the availability of these burden-reduction reporting options will result in a more complete picture of the releases and waste management quantities for these PFAS. EPA is removing the availability of the de minimis exemption for purposes of the Supplier Notification Requirements for all chemicals on the list of chemicals of special concern. This will help ensure that purchasers of mixtures and trade name products containing such chemicals are informed of their presence in mixtures and products they purchase to better inform any TRI reporting obligations.

DATES: This final rule is effective November 30, 2023 and shall apply for the reporting year beginning January 1, 2024 (reports due July 1, 2025), published in the Federal Register October 31, 2023, page 74360.

View final rule

§372.22 Covered facilities for toxic chemical release reporting.
(c)	Revised	View text
§372.25 Thresholds for reporting.
Introductory text	Revised	View text
(f)-(h)	Revised	View text
§372.28 Lower thresholds for chemicals of special concern.
Table 1 to paragraph (a)(1); entry “Per- and polyfluoroalkyl substances”	Added	View text
§372.29 Thresholds for per- and polyfluoroalkyl substances.
Entire section	Removed	View text
§372.30 Reporting requirements and schedule for reporting.
(a)-(b)	Revised	View text
§372.38 Exemptions.
(a)(2)	Revised	View text
(b)-(d), (f)-(h)	Revised	View text
§372.45 Notification about toxic chemicals.
(d)(1)	Revised	View text

Previous Text

§372.22 Covered facilities for toxic chemical release reporting.

* * * *

(c) The facility manufactured (including imported), processed, or otherwise used a toxic chemical in excess of an applicable threshold quantity of that chemical set forth in §372.25, §372.27, §372.28, or §372.29.

§372.25 Thresholds for reporting.

Except as provided in §372.27, 372.28, and 372.29, the threshold amounts for purposes of reporting under §372.30 for toxic chemicals are as follows:

* * * *

(f) A toxic chemical may be listed in §372.65 with the notation that only persons who manufacture the chemical, or manufacture it by a certain method, are required to report. In that case, only owners or operators of facilities that manufacture that chemical as described in §372.65 in excess of the threshold applicable to such manufacture in §372.27, §372.28, or§372.29 or are required to report. In completing the reporting form, the owner or operator is only required to account for the quantity of the chemical so manufactured and releases associated with such manufacturing, but not releases associated with subsequent processing or use of the chemical at that facility. Owners and operators of facilities that solely process or use such a chemical are not required to report for that chemical.

(g) A toxic chemical may be listed in §372.65 with the notation that it is in a specific form (e.g., fume or dust, solution, or friable) or of a specific color (e.g., yellow or white). In that case, only owners or operators of facilities that manufacture, process, or use that chemical in the form or of the color, specified in §372.65 in excess of the threshold applicable to such activity in §372.27, §372.28, or§372.29 are required to report. In completing the reporting form, the owner or operator is only required to account for the quantity of the chemical manufactured, processed, or used in the form or color specified in §372.65 and for releases associated with the chemical in that form or color. Owners or operators of facilities that solely manufacture, process, or use such a chemical in a form or color other than those specified by §372.65 are not required to report for that chemical.

(h) Metal compound categories are listed in §372.65(c) . For purposes of determining whether any of the thresholds specified in §372.27, §372.28, or§372.29 are met for metal compound category, the owner or operator of a facility must make the threshold determination based on the total amount of all members of the metal compound category manufactured, processed, or used at the facility. In completing the release portion of the reporting form for releases of the metal compounds, the owner or operator is only required to account for the weight of the parent metal released. Any contribution to the mass of the release attributable to other portions of each compound in the category is excluded.

§372.30 Reporting requirements and schedule for reporting.

(a) For each toxic chemical known by the owner or operator to be manufactured (including imported), processed, or otherwise used in excess of an applicable threshold quantity in §372.25, §372.27, §372.28, or §372.29 at its covered facility described in §372.22 for a calendar year, the owner or operator must submit to EPA and to the State in which the facility is located a completed EPA Form R (EPA Form 9350-1), EPA Form A (EPA Form 9350-2), and, for the dioxin and dioxin-like compounds category, EPA Form R Schedule 1 (EPA Form 9350-3) in accordance with the instructions referred to in subpart E of this part. If the covered facility is located in Indian country, the facility shall submit (to the extent applicable) a completed EPA Form R, Form A, and Form R Schedule 1 as described above to EPA and to the official designated by the Tribal Chairperson or equivalent elected official of the relevant Indian Tribe, instead of to the State.

(b)(1) The owner or operator of a covered facility is required to report as described in paragraph (a) of this section on a toxic chemical that the owner or operator knows is present as a component of a mixture or trade name product which the owner or operator receives from another person, if that chemical is imported, processed, or otherwise used by the owner or operator in excess of an applicable threshold quantity in §372.25, §372.27, §372.28, or §372.29 at the facility as part of that mixture or trade name product.

(2) The owner or operator knows that a toxic chemical is present as a component of a mixture or trade name product (i) if the owner or operator knows or has been told the chemical identity or Chemical Abstracts Service Registry Number of the chemical and the identity or Number corresponds to an identity or Number in §372.65 , or (ii) if the owner or operator has been told by the supplier of the mixture or trade name product that the mixture or trade name product contains a toxic chemical subject to section 313 of the Act or this part.

(3) To determine whether a toxic chemical which is a component of a mixture or trade name product has been imported, processed, or otherwise used in excess of an applicable threshold in §372.25, §372.27, §372.28, or §372.29 at the facility, the owner or operator shall consider only the portion of the mixture or trade name product that consists of the toxic chemical and that is imported, processed, or otherwise used at the facility, together with any other amounts of the same toxic chemical that the owner or operator manufactures, imports, processes, or otherwise uses at the facility as follows:

(i) If the owner or operator knows the specific chemical identity of the toxic chemical and the specific concentration at which it is present in the mixture or trade name product, the owner or operator shall determine the weight of the chemical imported, processed, or otherwise used as part of the mixture or trade name product at the facility and shall combine that with the weight of the toxic chemical manufactured (including imported), processed, or otherwise used at the facility other than as part of the mixture or trade name product. After combining these amounts, if the owner or operator determines that the toxic chemical was manufactured, processed, or otherwise used in excess of an applicable threshold in §372.25, §372.27, §372.28, or §372.29, the owner or operator shall report the specific chemical identity and all releases of the toxic chemical on EPA Form R in accordance with the instructions referred to in subpart E of this part.

(ii) If the owner or operator knows the specific chemical identity of the toxic chemical and does not know the specific concentration at which the chemical is present in the mixture or trade name product, but has been told the upper bound concentration of the chemical in the mixture or trade name product, the owner or operator shall assume that the toxic chemical is present in the mixture or trade name product at the upper bound concentration, shall determine whether the chemical has been manufactured, processed, or otherwise used at the facility in excess of an applicable threshold as provided in paragraph (b)(3)(i) of this section, and shall report as provided in paragraph (b)(3)(i) of this section.

(iii) If the owner or operator knows the specific chemical identity of the toxic chemical, does not know the specific concentration at which the chemical is present in the mixture or trade name product, has not been told the upper bound concentration of the chemical in the mixture or trade name product, and has not otherwise developed information on the composition of the chemical in the mixture or trade name product, then the owner or operator is not required to factor that chemical in that mixture or trade name product into threshold and release calculations for that chemical.

(iv) If the owner or operator has been told that a mixture or trade name product contains a toxic chemical, does not know the specific chemical identity of the chemical andknows the specific concentration at which it is present in the mixture or trade name product, the owner or operator shall determine the weight of the chemical imported, processed, or otherwise used as part of the mixture or trade name product at the facility. Since the owner or operator does not know the specific identity of the toxic chemical, the owner or operator shall make the threshold determination only for the weight of the toxic chemical in the mixture or trade name product. If the owner or operator determines that the toxic chemical was imported, processed, or otherwise used as part of the mixture or trade name product in excess of an applicable threshold in §372.25, §372.27, §372.28, or §372.29, the owner or operator shall report the generic chemical name of the toxic chemical, or a trade name if the generic chemical name is not known, and all releases of the toxic chemical on EPA Form R in accordance with the instructions referred to in subpart E of this part.

(v) If the owner or operator has been told that a mixture or trade name product contains a toxic chemical, does not know the specific chemical identity of the chemical, and does not know the specific concentration at which the chemical is present in the mixture or trade name product, but has been told the upper bound concentration of the chemical in the mixture or trade name product, the owner or operator shall assume that the toxic chemical is present in the mixture or trade name product at the upper bound concentration, shall determine whether the chemical has been imported, processed, or otherwise used at the facility in excess of an applicable threshold as provided in paragraph (b)(3)(iv) of this section, and shall report as provided in paragraph (b)(3)(iv) of this section.

(vi) If the owner or operator has been told that a mixture or trade name product contains a toxic chemical, does not know the specific chemical identity of the chemical, does not know the specific concentration at which the chemical is present in the mixture or trade name product, including information they have themselves developed, and has not been told the upper bound concentration of the chemical in the mixture or trade name product, the owner or operator is not required to report with respect to that toxic chemical.

§372.38 Exemptions.

* * * *

(a)(2) The exemption in this paragraph (a) applies whether the person received the mixture from another person, or the person produced the mixture, either by mixing the chemicals involved or by causing a chemical reaction which resulted in the creation of the toxic chemical in the mixture. However, this exemption applies only to the quantity of the toxic chemical present in the mixture. If the toxic chemical is also manufactured (including imported), processed, or otherwise used at the covered facility other than as part of the mixture or in a mixture at higher concentrations, in excess of an applicable threshold quantity set forth in §372.25, the person is required to report under §372.30. This exemption does not apply to toxic chemicals listed in §372.28, except for purposes of §372.45(d)(1).

(b) Articles. If a toxic chemical is present in an article at a covered facility, a person is not required to consider the quantity of the toxic chemical present in such article when determining whether an applicable threshold has been met under §372.25, §372.27, §372.28, or §372.29 or determining the amount of release to be reported under §372.30 . This exemption applies whether the person received the article from another person or the person produced the article. However, this exemption applies only to the quantity of the toxic chemical present in the article. If the toxic chemical is manufactured (including imported), processed, or otherwise used at the covered facility other than as part of the article, in excess of an applicable threshold quantity set forth in §372.25, §372.27, §372.28, or §372.29, the person is required to report under §372.30 . Persons potentially subject to this exemption should carefully review the definitions of "article" and "release" in §372.3 . If a release of a toxic chemical occurs as a result of the processing or use of an item at the facility, that item does not meet the definition of "article."

(c) Uses. If a toxic chemical is used at a covered facility for a purpose described in this paragraph (c) , a person is not required to consider the quantity of the toxic chemical used for such purpose when determining whether an applicable threshold has been met under §372.25, §372.27, §372.28, or §372.29 or determining the amount of releases to be reported under §372.30 . However, this exemption only applies to the quantity of the toxic chemical used for the purpose described in this paragraph (c) . If the toxic chemical is also manufactured (including imported), processed, or otherwise used at the covered facility other than as described in this paragraph (c) , in excess of an applicable threshold quantity set forth in §372.25, §372.27, §372.28, or §372.29, the person is required to report under §372.30 .

(1) Use as a structural component of the facility.

(2) Use of products for routine janitorial or facility grounds maintenance. Examples include use of janitorial cleaning supplies, fertilizers, and pesticides similar in type or concentration to consumer products.

(3) Personal use by employees or other persons at the facility of foods, drugs, cosmetics, or other personal items containing toxic chemicals, including supplies of such products within the facility such as in a facility operated cafeteria, store, or infirmary.

(4) Use of products containing toxic chemicals for the purpose of maintaining motor vehicles operated by the facility.

(5) Use of toxic chemicals present in process water and non-contact cooling water as drawn from the environment or from municipal sources, or toxic chemicals present in air used either as compressed air or as part of combustion.

(d) Activities in laboratories. If a toxic chemical is manufactured, processed, or used in a laboratory at a covered facility under the supervision of a technically qualified individual as defined in §720.3(ee) of this title, a person is not required to consider the quantity so manufactured, processed, or used when determining whether an applicable threshold has been met under §372.25, §372.27, §372.28, or §372.29 or determining the amount of release to be reported under §372.30 . This exemption does not apply in the following cases:

(1) Specialty chemical production.

(2) Manufacture, processing, or use of toxic chemicals in pilot plant scale operations.

(3) Activities conducted outside the laboratory.

(e) Certain owners of leased property. The owner of a covered facility is not subject to reporting under §372.30 if such owner's only interest in the facility is ownership of the real estate upon which the facility is operated. This exemption applies to owners of facilities such as industrial parks, all or part of which are leased to persons who operate establishments in any SIC code or NAICS code in §372.23 that is subject to the requirements of this part, where the owner has no other business interest in the operation of the covered facility.

(f) Reporting by certain operators of establishments on leased property such as industrial parks. If two or more persons, who do not have any common corporate or business interest (including common ownership or control), operate separate establishments within a single facility, each such person shall treat the establishments it operates as a facility for purposes of this part. The determinations in §372.22 and §372.25, §372.27, §372.28, or §372.29 shall be made for those establishments. If any such operator determines that its establishment is a covered facility under §372.22 and that a toxic chemical has been manufactured (including imported), processed, or otherwise used at the establishment in excess of an applicable threshold in §372.25, §372.27, §372.28, or §372.29 for a calendar year, the operator shall submit a report in accordance with §372.30 for the establishment. For purposes of this paragraph (f), a common corporate or business interest includes ownership, partnership, joint ventures, ownership of a controlling interest in one person by the other, or ownership of a controlling interest in both persons by a third person.

(g) Coal extraction activities . If a toxic chemical is manufactured, processed, or otherwise used in extraction by facilities in SIC code 12, or in NAICS codes 212111, 212112 or 212113, a person is not required to consider the quantity of the toxic chemical so manufactured, processed, or otherwise used when determining whether an applicable threshold has been met under §372.25, §372.27, §372.28, or §372.29, or determining the amounts to be reported under §372.30.

(h) Metal mining overburden . If a toxic chemical that is a constituent of overburden is processed or otherwise used by facilities in SIC code 10, or in NAICS codes 212221, 212222, 212230 or 212299, a person is not required to consider the quantity of the toxic chemical so processed, or otherwise used when determining whether an applicable threshold has been met under §372.25, §372.27, §372.28, or §372.29, or determining the amounts to be reported under §372.30.

§372.45 Notification about toxic chemicals.

* * * *

(d)(1) If a mixture or trade name product contains no toxic chemical in excess of the applicable de minimis concentration as specified in §372.38(a) .

Most Recent Highlights In Human Resources

2023-10-31T05:00:00Z

EPA deletes de minimis exemption for TRI-listed PFAS

The Environmental Protection Agency (EPA) finalized a rule impacting all reporting facilities that manufacture, process, or otherwise use per- and polyfluoroalkyl substances (PFAS) subject to Toxics Release Inventory (TRI) reporting (listed at 40 CFR 372.65). The agency is:

Designating all TRI-listed PFAS as “chemicals of special concern,” and
Removing the de minimis exemption for supplier notification requirements to downstream facilities for all chemicals on the list of chemicals of special concern.

Impact on reporting entities

The final rule categorizes all PFAS on the TRI as chemicals of special concern. This action:

Eliminates the de minimis exemption, which allowed facilities to avoid reporting information on PFAS that were used in small (de minimis) quantities (below the 100-pound threshold);
Removes eligibility to use reporting Form A, which simplified reporting for facilities that didn’t exceed the thresholds for the total annual reportable amount of PFAS (500 pounds) and for the amounts of PFAS manufactured, processed, or used (1 million pounds); and
Limits range reporting for PFAS.

Reporting facilities will now be required to report all quantities of PFAS they manage or release into the environment.

Additionally, EPA eliminated the de minimis exemption for the supplier notification requirements (at 372.45) to downstream facilities for facilities that manufacture or process any chemical on the list of chemicals of special concern. Previously, suppliers weren’t required to notify product users of certain chemicals present in mixtures if their concentrations were less than 1 percent (less than 0.1 percent for carcinogens). Suppliers will now be required to notify users of any amount of a chemical of special concern contained in the mixture.

Future PFAS added to TRI

The final rule also stipulates that when PFAS are added to the TRI in the future, they will also be added to the list of chemicals of special concern on the same date. This helps EPA avoid delays in reporting requirements since the 100-pound reporting threshold for PFAS will remain in the regulations.

The final rule’s changes take effect for the reporting year beginning on January 1, 2024. The annual TRI reports for 2024 are due to EPA on July 1, 2025.

Key to remember: EPA’s recent final rule requires covered facilities to include all quantities of PFAS on their TRI reports and mandates that suppliers notify product users of the presence of any chemicals of special concern contained in the mixture or product.

2023-10-30T05:00:00Z

EPA: Procedures for Chemical Risk Evaluation Under the Toxic Substances Control Act (TSCA)

SUMMARY: The Environmental Protection Agency (EPA, “the Agency”) is proposing to amend the procedural framework rule for conducting risk evaluations under the Toxic Substances Control Act (TSCA). The purpose of risk evaluations under TSCA is to determine whether a chemical substance presents an unreasonable risk of injury to health or the environment, without consideration of costs or non-risk factors, including unreasonable risk to potentially exposed or susceptible subpopulations identified as relevant to the risk evaluation by EPA, under the conditions of use. EPA has reconsidered the procedural framework rule for conducting such risk evaluations and determined that certain aspects of that framework should be revised to better align with applicable court decisions and the statutory text, to reflect the Agency's experience implementing the risk evaluation program following enactment of the 2016 TSCA amendments, and to allow for consideration of future scientific advances in the risk evaluation process without need to further amend the Agency's procedural rule.

DATES: Comments must be received on or before December 14, 2023, published in the Federal Register October 30, 2023, page 74292.

View proposed rule.

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EHS Monthly Roundup - March 2023

This monthly video spotlights EHS news highlights from March 2023.

Hi everyone! Welcome to the monthly news roundup video, where we’ll review the most impactful environmental, health, and safety news. Please view the content links in the transcript to take a deeper dive into the topics I’ll be covering today. With that said, let’s get started!

First, let’s take a look at what’s happening in safety and health. OSHA revised its combustible dust national emphasis program. It adds several industries with a higher likelihood of having combustible dust hazards.

California’s Safety and Health Appeals Board says drinking water must be “as close as practicable” to outdoor employees.

The Pipeline and Hazardous Materials Safety Administration says that some forklift operators may be considered hazmat employees. If operators handle hazmat cargo, such as moving it from the truck to an aircraft, they need hazmat training.

OSHA posted a letter of interpretation that answers hazard communication questions related to lithium batteries. The agency says workers may be exposed to hazards during storage, handling, and maintenance activities.

Stand Up 4 Grain Safety Week was held the week of March 27. Employers were encouraged to hold toolbox talks or safety demonstrations related to grain handling and storage.

Turning to environmental news, EPA issued significant new use rules for chemical substances that were the subject of premanufacture notices. This change brings added reporting and recordkeeping.

Thanks for tuning in to the monthly news roundup. We’ll see you next month!

EHS Monthly Roundup - February 2023

This monthly video spotlights EHS news highlights from February 2023.

Hi everyone! Welcome to the monthly roundup video, where we’ll review the most impactful environmental, safety, and health news.

First, let’s take a look at what’s happening in safety and health. Machine guarding and hazard communication topped OSHA’s list of most frequently cited serious violations in fiscal year 2022. Over 1,300 citations were issued for machine guarding and over 1,800 were issued for HazCom.

Effective March 26, OSHA will cite certain types of violations as “instance-by-instance” citations, when inspectors identify high-gravity, serious violations specific to the following: falls, trenching, machine guarding, respiratory protection, permit required confined space, and lockout/tagout, as well as other-than-serious violations specific to recordkeeping.

California’s COVID-19 prevention non-emergency regulations, which require employers to protect workers from the hazards related to COVID-19, took effect February 3, and will remain in effect for two years.

A new OSHA fact sheet outlines measures to protect shipyard employees from the physical hazards of confined spaces. In the maritime sector, physical hazards in confined spaces can increase a worker’s risk of injury.

OSHA says it will withdraw its proposal to revoke Arizona’s State Plan. The state has taken measures to remain compliant with federal OSHA. However, OSHA continues to work closely with Arizona to address other state-plan concerns that weren’t part of its original withdrawal proposal.

And turning to environmental news, EPA issued a rule that finalizes first-time standards for inorganic hazardous air pollutants in miscellaneous coating manufacturing that will limit emissions and require effective controls. Final amendments include provisions for inorganic hazardous air pollutant standards for process vessels. The rule took effect February 22.

Thanks for tuning in to the monthly news roundup. We'll see you next month!

2023-10-24T05:00:00Z

EPA: Phasedown of Hydrofluorocarbons: Restrictions on the Use of Certain Hydrofluorocarbons Under the American Innovation and Manufacturing Act of 2020

SUMMARY: The U.S. Environmental Protection Agency is issuing regulations to implement certain provisions of the American Innovation and Manufacturing Act, as enacted on December 27, 2020. This rulemaking restricts the use of hydrofluorocarbons in specific sectors or subsectors in which they are used; establishes a process for submitting technology transitions petitions; establishes recordkeeping and reporting requirements; and addresses certain other elements related to the effective implementation of the American Innovation and Manufacturing Act. These restrictions on the use of hydrofluorocarbons address petitions granted on October 7, 2021, and September 19, 2022.

DATES: This rule is effective December 26, 2023, published in the Federal Register October 24, 2023, page 73098.

View final rule.

Part 84—Phasedown of Hydrofluorocarbons
Subpart B—Restrictions on the Use of Hydrofluorocarbons	Added	View text

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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.

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2023-04-06T05:00:00Z

Giving truck drivers rights to your restrooms

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

Proposed legislation

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

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

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

Your restroom availability affects their health

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

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

Keys to Remember

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

2023-10-10T05:00:00Z

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.

2023-08-11T05:00:00Z

EPA: Used Drum Management and Reconditioning Advance Notice of Proposed Rulemaking

SUMMARY: The U.S. Environmental Protection Agency (the EPA) is soliciting information and requesting comments to assist in the potential development of non-regulatory and regulatory options that would ensure the proper management of used industrial containers that held hazardous chemicals or hazardous waste, up to and including the drum reconditioning process. Options could include revising the Resource Conservation and Recovery Act (RCRA) regulations or other, non-regulatory options. This Advance Notice of Proposed Rulemaking (ANPRM) does not propose any regulatory requirements or change any existing regulatory requirements.

DATES: Comments must be received on or before November 22, 2023, published in the Federal Register August 11, 2023, page 54537.

View proposed rule.

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EHS Monthly Round Up - January 2023

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

Hi everyone! Welcome to the monthly roundup video, where we’ll review the most impactful environmental, safety, and health news. First, let’s take a look at what’s happening in safety and health.

If you haven’t already done so, now is the time to post your OSHA 300A Summary. Employers are required to post the Summary in a conspicuous place from February 1st through April 30th.

As required by law, OSHA increased its penalties for inflation in mid-January. Penalties went up 7.7 percent, effective January 17th.

Also in January, OSHA released its long-awaited Fall 2022 regulatory agenda. Along with numerous proposed rules in the works, three major final rules are slated for 2023 – COVID-19 in healthcare, Injury and Illness tracking, and an update to the hazard communication standard.

OSHA recently released two new letters of interpretation, which address exit signs and lockout/tagout. Specifically, OSHA states that the International Standards Organization emergency exit symbol can be located beside the mandatory EXIT text on an existing sign.

The second letter addresses the applicability of lockout/tagout and the maintenance and operations of cathodic protection rectifiers when working on pipelines.

New York’s Warehouse Worker Protection Act was signed into law in December and takes effect in late February. It protects warehouse distribution workers from undisclosed or unlawful work speed quotas and includes protections for workers who fail to meet these quotas.

In 2021, a worker died every 101 minutes from a work-related injury, according to the Bureau of Labor Statistics. A total of 5,190 fatal work injuries was recorded in the U.S. in 2021, an 8.9 percent increase over 2020.

Turning to environmental news, EPA automatically added nine per- and polyfluoroalkyl substances, or PFAS, to the Toxics Release Inventory, or TRI, list. Four PFAS were added since they are no longer claimed as confidential business information.

EPA released its Fall 2022 regulatory agenda in early January. Included are major regulations impacting the National Ambient Air Quality Standards, waters of the United States, and modifications to the Risk Management Program under the Clean Air Act.

There are also a number of rules related to the National Emission Standards for Hazardous Air Pollutants in various rule stages.

And finally, beginning with model year 2027, heavy-duty trucks will be required to meet clean air standards that are 80 percent more stringent than current requirements.

EPA says this final rule is aimed at reducing smog- and soot-forming emissions, increasing the life of governed vehicles by up to 250 percent, and increasing emissions warranty periods up to 450 percent.

Thanks for tuning in to the monthly news roundup!

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.

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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.

2022-09-07T05:00:00Z

A quick lesson on the hazmat endorsement

Often, we’re presented with different driver and hazmat load scenarios along with one basic question: in this situation, does my driver need a hazmat endorsement on his or her commercial driver’s license (CDL)?

Typically, this comes up in two common situations:

Drivers are transporting Class 9 materials, or
Drivers are transporting diesel fuel.

Hazmat endorsements 101

First, a lesson on hazmat endorsements. For the hazmat endorsement requirements, we need to look at the Federal Motor Carrier Safety Administration (FMCSA) regulations, as CDLs are an FMCSA requirement.

Section 383.5 defines hazardous materials as “any material that has been designated as hazardous under 49 U.S.C. 5103 and is required to be placarded under subpart F of 49 CFR part 172 or any quantity of a material listed as a select agent or toxin in 42 CFR part 73.”

The key phrase in this definition is “required to be placarded.” If a hazardous material is required to be placarded, then the hazmat endorsement is also required.

Class 9 materials and diesel fuel

Now, to address our two common situations.

Class 9

Class 9 materials do not require placards for domestic transportation and as a result, a hazmat endorsement is not required if the driver is transporting only Class 9 materials. Placards aren’t required; therefore, the hazmat endorsement is not required.

Many of you might be wondering, “What if I placard Class 9 materials anyway?” The answer to this question goes back to the key phrase in the definition — “required to be placarded.” While Class 9 materials do not require placarding, they may be placarded according to the hazardous materials regulations (HMR). If you choose to placard a Class 9 material, that’s fine, but the endorsement is not required because the placards were not required.

Diesel fuel

Whether diesel is regulated largely depends on the type of packaging. Generally, combustible liquids such as diesel are not subject to the HMR when in non-bulk packaging. Therefore, when diesel is transported in non-bulk packaging, placards are not required.

However, when diesel is transported in bulk packaging (greater than 119 gallons liquid capacity), it is regulated and does require placards.

Therefore, a hazmat endorsement is required if the driver is transporting diesel in bulk packaging requiring placards.

Remember, whether a package is bulk or non-bulk depends on the capacity of the packaging.

Key to remember

When placards are required by the hazmat regulations, a hazmat endorsement is required. If placards are placed on a hazmat shipment, but are not required to transport the hazmat legally, then the driver does not require a hazmat endorsement.

Most Popular Highlights In Human Resources

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.

2022-09-06T05:00:00Z

Should employers require a doctor's note?

Many employers have a policy of requiring employees to supply a doctor’s note to account for their use of sick leave. Of course, this type of policy is intended to discourage the abuse of paid time off, and it is legal, but if enforcing such a policy, consider the following:

Employees may be sick enough to stay home, but not to see a doctor. This may be because of cost or because it simply isn’t necessary. Employees suffering from migraine headaches, mild flu, or even colds may not need to see a doctor to know they shouldn’t be at work.
Employees who don’t intend to see a doctor may be more likely to come to work ill. The policy was probably not intended to encourage presenteeism, but if employees are coming to work ill, the company may soon have more than one sick employee in the workplace.
Employees who needlessly visit the doctor may drive up health care costs. Should an employee with a cold really go to the doctor to justify an absence? Both employer- and employee-paid premiums could suffer at the hands of this policy.
Policies must be enforced consistently. If a policy requires a doctor’s note after so many days of absence, require one from every employee who is gone for the requisite number of days. Failing to do so could set up a discrimination claim.

Essentially, the stricter the policy, the more problematic it could be. If a company requires a doctor’s note for a single sick day, it may find the policy difficult to enforce. On the other hand, it may be more reasonable to indicate that such a note may be required for extended absences (perhaps of three days or more). The key is to strike a balance between not encouraging employees to work sick but also making sure they’re not abusing the system.

Remember, if an employee is off work under the Family and Medical Leave Act (FMLA), employers should not ask for doctor’s notes for intermittent absences, as it’s akin to a recertification. There are limited circumstances in which an employer can ask an employee to recertify their need for FMLA Leave.

2023-04-04T05:00:00Z

6 steps to handling a remote work accommodation request

Recent news headlines say many employers are requiring employees to return to the physical office; some after employees have been working remotely for about three years.

Since the long arm of long COVID and other medical conditions (physical or mental) continue to haunt the workplace, employers could find employees asking to keep working remotely because of their condition.

To help with these requests, here are six steps to take when an employee asks to work remotely as a reasonable accommodation under the Americans with Disabilities Act (ADA):

Determine if the request is related to a disability.
1. If your current remote work policy covers the request, grant the request without going through the entire ADA interactive process but proceed to step 5 in case accommodations are needed for the home office.
2. If your policy does not cover the request, can the employee’s job, or part of the job, be performed from home? If yes, proceed to step 2. If no, let the employee know that remote work is not possible in the current job and ask if the employee is interested in exploring options to work at the place of employment or reassignment to a job that the employee can do from home.
  1. If yes, conduct the interactive process to explore other options.
  2. If no, deny the employee’s request and proceed to Step 6.
Determine if you need medical documentation to support the request.
1. Is the disability or need for accommodation obvious or already documented?
  1. If yes, do not ask for medical documentation, proceed to step 3.
  2. If no, you may request documentation.
2. Does the medical information support the request?
  1. If yes, proceed to step 3.
  2. If no, let the employee know that the medical information is not sufficient and if requested, give the employee time to provide additional information.
Explore accommodation options.
1. Do you want to explore options other than remote work?
  1. If no, proceed to step 4.
  2. If yes, first try to understand why the employee is asking to work remotely. What are the employee’s limitations that led to the request? Once you have this information other options might be obvious, or it might be obvious that remote work is the only effective option. If neither is obvious, you and the employee can brainstorm ideas. Once you have a list of effective options, move on to step 4.
Choose an accommodation. (A best practice is to choose the employee’s preferred accommodation, but you may opt for any effective option).
1. Are you going to allow remote work?
  1. If yes, proceed to step 5.
  2. If no, meet with the employee to discuss the alternative option you chose.
Implement the accommodation. (Take whatever steps needed to make sure the accommodation is effective — absent undue hardship. For remote work, this might mean providing equipment, technical support, and additional accommodations).
1. If needed, can you provide the same equipment used in the work office for the home office?
  1. If yes, provide the equipment.
  2. If no, could you provide another effective alternative?
    1. If yes, provide the alternative.
    2. If no, consider whether there is another way to perform the job duty or if the duty is marginal, whether it can be removed.
      1. If yes, go through the interactive process if needed to determine effective options.
2. Is adequate technical support available?
  1. If no, assign someone with adequate technical skills to respond to the employee’s technical issues.
  2. If yes, make sure someone is available and responsive.
3. Does the employee need other accommodations for the home office?
  1. If no, proceed to step 6.
  2. If yes, go through the interactive process if needed to determine effective options.
Document and monitor the accommodation.
1. Document all agreed upon accommodations. If you will not grant the accommodation due to undue hardship, make sure you make detailed record of the request, the reason you deemed it a hardship, and alternative considerations that were made.
2. Make sure the accommodation continues to be effective by checking in with the employee periodically and letting the employee know who to contact if any problems arise. If an accommodation involves equipment that may need regular maintenance or upgrades, be sure that is scheduled and monitored to maintain effectiveness.

If this process looks familiar, it is because it’s pretty much the same process used for any accommodation request under the ADA. The goal is to find an effective solution for both employer and employee.

Key to remember: Having a process to follow can not only help comply with the ADA, but it can also help employees get their jobs done even while working remotely. Ensure employees are treated fairly, which can go a long way toward retention goals, as well as help avoid discrimination claims.

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.

HIPPA Wage and Hour FLSA HIPAA

Most Popular Highlights In Safety & Health

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.

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.

2022-08-29T05:00:00Z

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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EHS Monthly Round Up - November 2023

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 review the most impactful environmental, health, and safety news. Please view the content links in the transcript for more information about the topics I’ll be covering today. With that said, let’s get started!

For the 13th year in a row, fall protection for construction topped OSHA’s list of violations. In fiscal year 2023, there were over 7,000 recorded violations, up from 5,250 in fiscal year 2022.

Workers who are exposed to lead in industries such as painting, battery manufacturing, and building renovation risk bringing lead home on their clothing and personal items. Take-home lead can contaminate a worker’s car and home, posing an exposure risk to family members. A new NIOSH publication outlines steps workers can take to minimize this risk.

Private industry employers reported 2.8 million nonfatal workplace injuries and illnesses in 2022. This is a 7.5 percent increase over 2021. The increase is due to a rise in both illnesses, which were up 26.1 percent, and injuries, which were up 4.5 percent. Respiratory illness cases drove the spike in reported illnesses.

OSHA faces significant challenges in ensuring worker safety, particularly in high-risk industries. This is according to a report from the Office of Inspector General, or OIG. Among OSHA’s top challenges are verifying timely hazard abatement, employer reporting, completing inspections, workplace violence, and protecting workers from crystalline silica.

And finally, turning to environmental news, a recent EPA rule requires covered facilities to include all quantities of per- and polyfluoroalkyl substances, or PFAS, on their Toxics Release Inventory reports. The rule also mandates that suppliers notify product users of the presence of any chemicals of special concern contained in their mixtures and products.

Thanks for tuning in to the monthly news roundup. We’ll see you next month!

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

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