It’s over – Remote review of Form I-9 documents ends, but E-Verify employers have flexibility

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It’s over – Remote review of Form I-9 documents ends, but E-Verify employers have flexibility

2023-07-21T05:00:00Z

The option for remote review of Form I-9 documents, available because of the COVID-19 pandemic, ended on July 31. Employers who used this flexibility must take steps to make sure their paperwork is in order by August 30.

That’s the deadline for verifying documents that were reviewed remotely during the flexibility period that ran from March 20, 2020, to July 31, 2023. During that time, the employers could review documents via video, fax, or email.

Now that the COVID-19 flexibility period has ended, employers who used it need to make sure they properly verify employee documents that were presented remotely. An employer’s next steps depend on whether they were enrolled in E-Verify during the flexibility period.

In-person inspection for employers not enrolled in E-Verify

Employers that were not enrolled in E-Verify during the temporary flexibility period must arrange for an in-person inspection of an employee’s identity and work authorization documents.

An employer could:

Use a representative to inspect the documents. This individual who does a physical examination of the documents could be a company employee, but does not need to be. It could be anyone who the employer trusts to inspect the documents on the company’s behalf. This could be a lawyer, a public official, or a notary public. A relative or friend of the employee could also examine the documents, but employers are responsible for any mistakes.
Have the employee report to a company location. The employee could bring the physical documents to a company location and the employer could do the document inspection on-site.

Employers doing an in-person physical inspection must update the employee’s Form I-9 by placing the following information in the Additional Information field in Section 2:

“COVID-19”
“Documents physically examined on”
The date of the physical examination
The initials of the person doing the physical examination

The Additional Information field should already contain a note about remote inspection of documents and the date the remote inspection was completed.

The appropriate information is entered in Section 3 if the document review was because of a reverification or rehire.

Remote review option for E-Verify employers

Employers who were enrolled in E-Verify during the flexibility period have the option of doing a second document inspection remotely. To use this option, they must conduct a live video interaction for each employee whose documents were examined remotely. This process must be used to finalize the Form I-9, even if a similar one was used during the flexibility period. An employer using this alternative annotates with the Form I-9 with the following information in the Additional Information field in Section 2:

“Alternative procedure”
The date of the second remote document examination
The initials of the person who conducted the video review

The “Additional Information” field should already include the date of the first remote document examination.

As with an in-person inspection, the appropriate information is entered in Section 3 if the document review was because of a reverification or rehire.

The video review option is only available to employers who meet four requirements. They must:

Have remotely examined an employee’s documentation between March 20, 2020, and July 31, 2023
Been enrolled in E-Verify when they completed the Form I-9 for that employee
Created a case in E-Verify for that employee (unless the document inspection was for reverification), and
Be currently enrolled in and participate in E-Verify

E-Verify employers do not have to use the remote review option, and could instead opt to do an in-person physical examination of documents by August 30.

If they do choose the remote review option, they need to offer it in a non-discriminatory manner. For example, they cannot decide that certain employees are not eligible for remote review because they did not have a driver’s license or another specific type of document.

Key to remember: Employers who remotely reviewed employee documents for the Form I-9 during the flexibility period need to properly reinspect the documents and update the Form I-9 by August 30.

In-person inspection for employers not enrolled in E-Verify

Employers that were not enrolled in E-Verify during the temporary flexibility period must arrange for an in-person inspection of an employee’s identity and work authorization documents.

An employer could:

Use a representative to inspect the documents. This individual who does a physical examination of the documents could be a company employee, but does not need to be. It could be anyone who the employer trusts to inspect the documents on the company’s behalf. This could be a lawyer, a public official, or a notary public. A relative or friend of the employee could also examine the documents, but employers are responsible for any mistakes.
Have the employee report to a company location. The employee could bring the physical documents to a company location and the employer could do the document inspection on-site.

Employers doing an in-person physical inspection must update the employee’s Form I-9 by placing the following information in the Additional Information field in Section 2:

“COVID-19”
“Documents physically examined on”
The date of the physical examination
The initials of the person doing the physical examination

The Additional Information field should already contain a note about remote inspection of documents and the date the remote inspection was completed.

The appropriate information is entered in Section 3 if the document review was because of a reverification or rehire.

Remote review option for E-Verify employers

“Alternative procedure”
The date of the second remote document examination
The initials of the person who conducted the video review

The “Additional Information” field should already include the date of the first remote document examination.

As with an in-person inspection, the appropriate information is entered in Section 3 if the document review was because of a reverification or rehire.

The video review option is only available to employers who meet four requirements. They must:

Have remotely examined an employee’s documentation between March 20, 2020, and July 31, 2023
Been enrolled in E-Verify when they completed the Form I-9 for that employee
Created a case in E-Verify for that employee (unless the document inspection was for reverification), and
Be currently enrolled in and participate in E-Verify

E-Verify employers do not have to use the remote review option, and could instead opt to do an in-person physical examination of documents by August 30.

Key to remember: Employers who remotely reviewed employee documents for the Form I-9 during the flexibility period need to properly reinspect the documents and update the Form I-9 by August 30.

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Most Recent Highlights In Environmental

2024-11-13T06:00:00Z

EPA airs interim Good Neighbor Plan rules for power plants and industrial facilities

Future emission requirements for certain power plants and other industrial sources across 23 states remain up in the air. The Environmental Protection Agency (EPA) published the Third Final Interim Rule for its Good Neighbor Plan (GNP) in October 2024, officially pausing the federal emissions-control program in all affected states as legal battles continue.

So, the GNP requirements are paused, but what does that mean for the facilities covered by the rule?

What’s the GNP rule? Who does it impact?

The GNP is a federal program for 23 states that requires fossil fuel-fired power plants and other industrial facilities (such as manufacturers and solid waste incinerators) to lower emissions of ozone-forming nitrogen oxides (NOx) that hinder downwind states’ ability to achieve and maintain the 2015 Ozone National Ambient Air Quality Standards (NAAQS).

Interim GNP rules set

EPA issued the First and Second Interim Final Rules in 2023 in response to a judicial order to partially stay the agency’s disapproval of State Implementation Plans (SIPs) for implementing the NAAQS. The rules temporarily stopped enforcement of the GNP in 12 states.

In July 2024, the U.S. Supreme Court issued an order of stay for three other states challenging the GNP rule in a separate case. EPA responded to the Supreme Court with the Third Interim Final Rule. Although the Supreme Court’s order addresses only the states involved in the case, the rule pauses the GNP’s requirements for the emissions sources in all remaining 11 states.

Interim rule requirements

Until the GNP rule is settled, power plants and industrial facilities must meet the less stringent 2008 Ozone NAAQS. Two rules address interstate emissions for this standard:

The 2016 Cross-State Air Pollution Rule Update for the 2008 Ozone NAAQS (CSAPR), and
The 2021 Revised CSAPR.

Power plants

For the interim, power plants in states with previous interstate air pollution requirements for the 2008 Ozone NAAQS are subject to equivalent requirements established by the CSAPR and Revised CSAPR rules:

Power plants covered by the CSAPR’s NOx Ozone Season “Group 2” Trading Program before the GNP remain subject to the state emissions budgets and unit-level allowances set in the CSAPR. These include power plants in Alabama, Arkansas, Mississippi, Missouri, Oklahoma, and Texas. Further, power plants in Wisconsin transfer back to the Group 2 trading program.
Power plants covered by the Revised CSAPR’s NOx Ozone Season “Group 3” Trading Program before the GNP transfer back to the Group 2 trading program. However, the emissions budgets and unit-level allowances set in the Revised CSAPR’s Group 3 trading program apply. These affect power plants in Kentucky, Louisiana, and West Virginia.
Other power plants covered by the Revised CSAPR’s NOx Ozone Season “Group 3” Trading Program before the GNP transfer to the Group 2 trading program. But, the emissions budgets and unit-level allowances set in the Revised CSAPR’s Group 3 trading program apply.

The interim rules also make allowances interchangeable for power plants in some states for Group 2 trading program compliance, including Illinois, Indiana, Kentucky, Louisiana, Maryland, Michigan, New Jersey, New York, Ohio, Pennsylvania, Virginia, and West Virginia.

Power plants in Alabama, Arkansas, Mississippi, Missouri, Oklahoma, and Texas retain their banked Group 2 allowances. Also, Kentucky, Louisiana, and West Virginia may convert banked 2021–22 Group 3 allowances to Group 2 allowances.

Power plants in Illinois, Indiana, Maryland, Michigan, New Jersey, New York, Ohio, Pennsylvania, Virginia, and Wisconsin may convert their 2021–23 Group 3 allowances to Group 2 allowances. However, EPA will recall the 2024 Group 3 allowances issued before the stay order.

Power plants in Minnesota, Nevada, and Utah weren’t covered by previous ozone NAAQS requirements, so they maintain the status quo. Additionally, California power plants aren’t subject to GNP requirements.

Industrial sources

Most of the GNP’s requirements for industrial facilities don’t begin until the start of the 2026 ozone season (May 1, 2026). EPA won’t enforce the deadlines that occur before then for procedural requirements, such as submitting optional case-by-case emissions limit requests.

What’s the future of the GNP?

For now, the future of the GNP remains unclear due to ongoing litigation. EPA’s administrative stay remains in effect until:

The U.S. Supreme Court lifts its stay order,
Other courts lift judicial stay orders for SIP disapprovals, and
EPA establishes rulemaking aligned with any judicial rulings on the merits of the GNP.

Plus, if a state’s judicial stay order due to SIP disapproval is lifted, the agency won’t remove the stay for the state’s emissions sources until the Supreme Court lifts its stay order.

Key to remember: EPA’s final interim rules establish temporary compliance requirements for power plants and other industrial sources while the Good Neighbor Plan remains paused.

Clean Air Act CAA r40CFR97 r40CFR52 40 CFR 97 40 CFR 52

EHS Monthly Round Up - October 2024

In this October 2024 roundup 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. Let’s get started!

A Government Accountability Office report says OSHA can do more to protect warehouse and delivery workers from ergonomic injuries. The report recommends several steps for OSHA to consider, including ensuring compliance officers can easily obtain data on when musculoskeletal disorders occurred.

OSHA updated its inspection guidance for animal slaughtering and processing industries. Inspections will focus on several hazards, including sanitation, ergonomics, and machine guarding. Among other changes, compliance officers will conduct inspections during off-shift times and identify workplace activities that impact employees most at risk such as temporary employees.

OSHA urges workers involved in hurricane cleanup and recovery efforts to be mindful of hazards, especially those associated with restoring electricity, removing debris, and trimming trees. Proper training, experience, and familiarity with related equipment helps ensure worker safety.

And finally, turning to environmental news, EPA extended the 2024 Chemical Data Reporting deadline to November 22 due to technical difficulties with its electronic reporting tool. The 2024 report covers activities that occurred between calendar years 2020 and 2023.

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

2024-11-07T06:00:00Z

Expert Insights: End-of-year environmental checklist

As the year draws to a close, it’s essential for environmental professionals to take proactive steps to ensure a smooth transition into the new year. As an environmental professional working in the industry, I always took this time to address key tasks to avoid last-minute stress and position my organization for a successful environmental compliance year. Here are a few tips and reminders for you to consider.

Verify expiration dates

It’s a good time to verify expiration dates and to ensure all permits and licenses are current and valid. Identify renewal requirements and gather necessary documentation and information for upcoming renewals. Take corrective actions to rectify any violations or deficiencies.

Get ready to report

If Tier II reporting applies to your facility, start gathering information on hazardous chemicals stored or handled on-site. The March 1 deadline will approach quickly, and you’ll want to be prepared.

Assess performance

The end of the year provides an opportunity to review and assess your organization’s environmental performance and identify areas for improvement. Use your experience throughout the year to guide you as you develop corrective action plans. Review and update emergency response plans. Verify that contact information, procedures, and equipment are up to date.

Get organized

File documents and store all environmental records in a systematic and organized manner. Consider scanning important documents to create electronic copies. Establish guidelines for retaining environmental records to comply with legal requirements.

Things can change rapidly during the year, and much-needed tasks can fall by the wayside. By carving out time at the end of the year to complete these tasks, you can set a strong foundation for a successful and compliant new year.

2024-10-28T05:00:00Z

EPA alert clamps down on oil storage tank overfills

Are your aboveground storage tanks (ASTs) engineered to avoid overfills during oil transfers? EPA issued a technical alert to highlight the importance of overfill prevention measures. Having these systems is not enough, though. They must be properly designed, operated, maintained, and inspected.

The 13-page alert (EPA 540-S-24-001) aims at owners and operators of “substantial harm oil storage facilities.” These facilities are often covered by 40 CFR 112, including both the oil Spill Prevention, Control, and Countermeasure (SPCC) regulations and oil Facility Response Plan (FRP) regulations.

Implementing overfill prevention is mandated by part 112. That’s because these critical systems alert you to potential container overfills. Overfills are often the cause of oil discharges.

Overfill dangers

Overfills of large ASTs during high-volume oil transfers have led to:

Discharges of oil to the land, air, and waterways;
Fires and explosions;
Injuries; and
Damage to nearby tanks, facilities, and communities.

The alert showcases two headline-making incidents to illustrate the danger:

October 2009 — A 5-million-gallon AST overflowed during a routine gasoline transfer operation from a marine tanker vessel to an onshore tank farm. The aerosolized gasoline spray created a vapor cloud that ignited. This resulted in a massive explosion. The automated overfill prevention system was not operable. Other factors like open dike drain valves and inadequate nighttime lighting contributed to the extent of the incident.
December 2005 — An AST overfilled at an oil storage depot. This created a vapor cloud that ignited. A subsequent explosion caused multiple tank fires and loss of containment. It also damaged 22 ASTs and neighboring properties and injured 43 people. The overfill prevention mechanisms were not operable.

Overfills are preventable

Overfills can happen, but they are preventable! The alert explains that overfill prevention systems commonly used at facilities monitor liquid levels in tanks. These prevention systems include:

Audible or visual high-liquid-level alarms,
Automatic high-liquid-level pump shutoff devices,
Gauges with attendants, and
Direct communication procedures during product transfers.

The trouble is, when these systems fail, overfills can still occur. Therefore, it’s critical to take other measures. Adequate system maintenance, inspection, implementation, nighttime security lighting, training, and procedures are examples.

So, oil discharges to the environment and waterways may be prevented and/or minimized with the help of overfill prevention systems. At the same time, however, owners and operators need to implement:

Standardized oil handling and transfer procedures,
Proper operation and maintenance of dike drainage valves,
Routine inspection and testing procedures, and
Security lighting that’s maintained.

More information in the alert

EPA’s technical alert addresses adequately designed, implemented, and maintained overfill prevention systems. The alert explores:

EPA’s regulations,
Historical overfill incidents,
Regulatory requirements,
Associated standards and practices, and
Technical considerations to lower risks.

Thirteen references and their links are included. Two worth noting are:

EPA’s 2013 SPCC Guidance for Regional Inspectors — While this guidance document is for EPA inspectors, facility owners and operators may gain insights into 40 CFR 112 by reviewing it.
Chemical Safety and Hazard Investigation Board’s 2015 investigation report of a petroleum tank terminal explosion and multiple tank fires — This report goes into detail about an incident in Puerto Rico and its root causes. It also recommends that OSHA and EPA strengthen their regulations related to overfill prevention systems.

If you have an SPCC- and/or FRP-regulated facility, EPA urges you to review the alert. You should also consider whether more action is needed to address these requirements at your oil storage facility.

Key to remember

EPA issued a technical alert to highlight the importance of overfill prevention measures. The agency says they must be properly designed, operated, maintained, and inspected.

2024-10-25T05:00:00Z

TSCA Section 4 Test Orders: What are your facility’s options?

Did you know that the chemicals your facility makes and processes could be subject to additional testing requirements? Through a Section 4 Test Order under the Toxic Substances Control Act (TSCA), the Environmental Protection Agency (EPA) can require manufacturers (including importers) and processors to test and submit information on existing chemicals and mixtures through the agency’s Central Data Exchange (CDX).

For example, EPA issued the fifth TSCA Section 4 Test Order for per- and polyfluoroalkyl substances (PFAS) in October 2024. Five companies must submit information on the PFAS commonly known as 6:2 FTAc (used to manufacture plastics, resins, textiles, apparel, leather, and other chemicals), which the agency found may present an unreasonable risk of injury to human health or the environment.

How will your facility respond if it receives a TSCA Section 4 Test Order? Let’s look at the four response options.

First, submit the identification response

Entities that receive a test order must first submit an identification response within 30 days of the order’s effective date. You can identify as a manufacturer, processor, or both.

If you don’t manufacture or process the chemical or believe EPA mistakenly sent you the order, you may claim that you’re not subject to the order. Provide supporting information with the claim in the identification response.

Next, choose the initial response

Companies subject to the test order then submit an initial response to tell EPA how it will comply. There are four response options:

Develop and submit the information,
Submit information from an existing study,
Apply for an exemption, and
Join a consortium.

You can choose a different response for every test required by the order. Let’s zoom in on each option.

Option 1: Develop the information

The most straightforward response is to conduct the test(s) and generate the information. The order contains everything you need to know, including:

The tests required,
The methodologies and protocols you can use, and
The applicable deadlines.

Option 2: Submit existing information

Alternatively, if you believe EPA hasn’t considered relevant information, you can submit an existing study and/or other relevant information. Include a rationale document that explains how the existing information you present fulfills the test order’s requirements and which information it covers (i.e., Does it provide parts of or all the needed information?).

If EPA finds any of the existing data you submit acceptable, the agency will remove the obligations in the test order that the existing information fulfills. However, if the agency determines the existing information isn’t acceptable, you must submit a different response option within 10 days of EPA’s rejection.

Option 3: Request an exemption

EPA grants exemptions to avoid duplicating information. You may be exempt from a test order if:

Information on an equivalent chemical was already submitted or is being developed, or
Information on an equivalent chemical is being developed for a TSCA Section 4(a) rule, order, or consent agreement.

Include with your exemption application a rationale document that identifies:

The chemical substance subject to the order,
The testing requirements from which you seek exemption,
Which companies submitted or are developing information for an equivalent chemical substance if your exemption request relies on information generated by others,
The chemical identity of the equivalent substance,
The required equivalence data, and
Contact information.

You must also include a sworn statement of financial responsibility to reimburse the entity(ies) that paid the costs to submit the testing information if your exemption is granted.

Option 4: Join a consortium

EPA allows companies subject to the same test order to form a consortium to share the costs of generating the required information (including testing and fees).

To begin, inform EPA individually of the specific chemicals and tests you plan to address through a consortium. The individual designated as the lead in the consortium then submits the initial response on behalf of all entities in the group.

Organizations interested in joining a consortium must contact EPA’s TSCA Hotline by email (tsca-hotline@epa.gov) or phone call ((202) 554-1404).

Test order tips

Consider these helpful tips when choosing how to respond to a TSCA Section 4 Test Order:

All communications for test orders occur through EPA’s CDX system, so ensure your company has registered with CDX and assigned the appropriate roles to each user.
Keep a record of the automated email from CDX confirming receipt of your initial response.
You’ll receive a response from EPA that either:
- Requests more information to support and/or clarify your response, or
- Confirms receipt of a well-substantiated response requiring no further action.

Key to remember: EPA’s TSCA Section 4 Test Orders require manufacturers (including importers) and processors to develop information on existing chemicals. Companies subject to the order have four response options.

TSCA r40CFR790 40 CFR 790 40 CFR 790 Procedures governing testing consent agreements and test rules

Most Recent Highlights In Transportation

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

EHS Monthly Round Up - September 2024

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

OSHA published its proposed heat illness rule on August 30. It applies to both indoor and outdoor work in general industry, construction, agriculture, and maritime. Comments on the proposal will be accepted until December 30. OSHA encourages both employers and workers to submit comments.

Fall protection for construction remained number one on OSHA’s list of Top 10 violations for the 14th year in a row. There was little movement among the other Top 10 entries, with Hazard Communication at number 2 and ladders at number 3.

OSHA may exclude volunteer emergency response organizations from its proposed emergency response rule. During the rule’s public comment period, the agency received numerous comments that raised serious economic feasibility concerns.

During its silica enforcement inspections, OSHA also found violations of the hazard communication, respiratory protection, and noise standards. Over 200 companies were targeted as part of the agency’s respirable crystalline silica emphasis program.

Employers can view workplace injury and illness trends using OSHA’s Severe Injury Report dashboard. This new online tool allows users to search the agency’s severe injury report database. Severe injuries and illnesses are those that result in inpatient hospitalization, amputation, or loss of an eye.

And finally, turning to environmental news, an EPA final rule impacts facilities that reclassify from major to area source status under the National Emission Standards for Hazardous Air Pollutants program. These facilities must continue to meet the major source emission standards for seven hazardous air pollutants.

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

2021-12-27T06:00:00Z

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

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 141

[EPA-HQ-OW-2020-0530; FRL-6791-03-OW]

RIN 2040-AF89

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

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule and notice of public meetings.

SUMMARY: The U.S. Environmental Protection Agency (EPA) is finalizing a Safe Drinking Water Act (SDWA) rule that requires certain public water systems (PWSs) to collect national occurrence data for 29 per- and polyfluoroalkyl substances (PFAS) and lithium. Subject to the availability of appropriations, EPA will include all systems serving 3,300 or more people and a representative sample of 800 systems serving 25 to 3,299 people. If EPA does not receive the appropriations needed for monitoring all of these systems in a given year, EPA will reduce the number of systems serving 25 to 10,000 people that will be asked to perform monitoring. This final rule is a key action to ensure science-based decision-making and prioritize protection of disadvantaged communities in accordance with EPA's PFAS Strategic Roadmap. EPA is also announcing plans for public webinars to discuss implementation of the fifth Unregulated Contaminant Monitoring Rule (UCMR 5).

DATES: This final rule is effective on January 26, 2022. The incorporation by reference of certain publications listed in this final rule is approved by the Director of the Federal Register as of January 26, 2022.

ADDRESSES: EPA has established a docket for this action under Docket ID No. EPA-HQ-OW-2020-0530. All documents in the docket are listed on the https://www.regulations.gov website. Although listed in the index, some information is not publicly available, e.g., CBI or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the internet and will be publicly available only in hard copy form. Publicly available docket materials are available electronically through https://www.regulations.gov.

FOR FURTHER INFORMATION CONTACT: Brenda D. Bowden, Standards and Risk Management Division (SRMD), Office of Ground Water and Drinking Water (OGWDW) (MS 140), Environmental Protection Agency, 26 West Martin Luther King Drive, Cincinnati, Ohio 45268; telephone number: (513) 569-7961; email address: bowden.brenda@epa.gov; or Melissa Simic, SRMD, OGWDW (MS 140), Environmental Protection Agency, 26 West Martin Luther King Drive, Cincinnati, Ohio 45268; telephone number: (513) 569-7864; email address: simic.melissa@epa.gov. For general information, visit the Ground Water and Drinking Water web page at: https://www.epa.gov/ground-water-and-drinking-water.

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Summary Information

A. Purpose of the Regulatory Action

1. What action is EPA taking?

2. Does this action apply to me?

3. What is EPA's authority for taking this action?

4. What is the applicability date?

B. Summary of the Regulatory Action

C. Economic Analysis

1. What is the estimated cost of this action?

2. What are the benefits of this action?

II. Public Participation

A. What meetings have been held in preparation for UCMR 5?

B. How do I participate in the upcoming meetings?

1. Meeting Participation

2. Meeting Materials

III. General Information

A. How are CCL, UCMR, Regulatory Determination process, and NCOD interrelated?

B. What are the Consumer Confidence Reporting and Public Notice Reporting requirements for public water systems that are subject to UCMR?

C. What is the UCMR 5 timeline?

D. What is the role of “States” in UCMR?

E. How did EPA consider Children's Environmental Health?

F. How did EPA address Environmental Justice?

G. How did EPA coordinate with Indian Tribal Governments?

H. How are laboratories approved for UCMR 5 analyses?

1. Request To Participate

2. Registration

3. Application Package

4. EPA's Review of Application Package

5. Proficiency Testing

6. Written EPA Approval

I. What documents are being incorporated by reference?

1. Methods From the U.S. Environmental Protection Agency

2. Alternative Methods From American Public Health Association—Standard Methods (SM)

3. Methods From ASTM International

IV. Description of Final Rule and Summary of Responses to Public Comments

A. What contaminants must be monitored under UCMR 5?

1. This Final Rule

2. Summary of Major Comments and EPA Responses

a. Aggregate PFAS Measure

b. Legionella Pneumophila

c. Haloacetonitriles

d. 1,2,3-Trichloropropane

B. What is the UCMR 5 sampling design?

1. This Final Rule

2. Summary of Major Comments and EPA Responses

C. What is the sampling frequency and timing?

1. This Final Rule

2. Summary of Major Comments and EPA Responses

D. Where are the sampling locations and what is representative monitoring?

1. This Final Rule

2. Summary of Major Comments and EPA Responses

E. How long do laboratories and PWSs have to report data?

1. This Final Rule

2. Summary of Major Comments and EPA Responses

F. What are the reporting requirements for UCMR 5?

1. This Final Rule

2. Summary of Major Comments and EPA Responses

a. Data Elements

b. Reporting State Data

G. What are the UCMR 5 Minimum Reporting Levels (MRLs) and how were they determined?

1. This Final Rule

2. Summary of Major Comments and EPA Responses

H. What are the requirements for laboratory analysis of field reagent blank samples?

1. This Final Rule

2. Summary of Major Comments and EPA Responses

I. How will EPA support risk communication for UCMR 5 results?

V. Statutory and Executive Order Reviews

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

B. Paperwork Reduction Act (PRA)

C. Regulatory Flexibility Act (RFA)

D. Unfunded Mandates Reform Act (UMRA)

E. Executive Order 13132: Federalism

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

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

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

I. National Technology Transfer and Advancement Act (NTTAA)

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

K. Congressional Review Act (CRA)

VI. References

Abbreviations and Acronyms

μg/L Microgram per Liter

11Cl-PF3OUdS 11-chloroeicosafluoro-3-oxaundecane-1-sulfonic Acid

4:2 FTS 1H, 1H, 2H, 2H-perfluorohexane Sulfonic Acid

6:2 FTS 1H, 1H, 2H, 2H-perfluorooctane Sulfonic Acid

8:2 FTS 1H, 1H, 2H, 2H-perfluorodecane Sulfonic Acid

9Cl-PF3ONS 9-chlorohexadecafluoro-3-oxanone-1-sulfonic Acid

ADONA 4,8-dioxa-3H-perfluorononanoic Acid

AES Atomic Emission Spectrometry

ASDWA Association of State Drinking Water Administrators

ASTM ASTM International

AWIA America's Water Infrastructure Act of 2018

CASRN Chemical Abstracts Service Registry Number

CBI Confidential Business Information

CCL Contaminant Candidate List

CCR Consumer Confidence Report

CFR Code of Federal Regulations

CRA Congressional Review Act

CWS Community Water System

DBP Disinfection Byproduct

DWSRF Drinking Water State Revolving Fund

EPA United States Environmental Protection Agency

EPTDS Entry Point to the Distribution System

FR Federal Register

FRB Field Reagent Blank

GW Ground Water

GWRMP Ground Water Representative Monitoring Plan

HFPO-DA Hexafluoropropylene Oxide Dimer Acid (GenX)

HRL Health Reference Level

ICP Inductively Coupled Plasma

ICR Information Collection Request

IDC Initial Demonstration of Capability

LCMRL Lowest Concentration Minimum Reporting Level

LC/MS/MS Liquid Chromatography/Tandem Mass Spectrometry

MDBP Microbial and Disinfection Byproduct

MRL Minimum Reporting Level

NAICS North American Industry Classification System

NCOD National Contaminant Occurrence Database

NDAA National Defense Authorization Act for Fiscal Year 2020

NEtFOSAA N-ethyl Perfluorooctanesulfonamidoacetic Acid

NFDHA Nonafluoro‐3,6‐dioxaheptanoic Acid

ng/L Nanogram per Liter

NMeFOSAA N-methyl Perfluorooctanesulfonamidoacetic Acid

NPDWR National Primary Drinking Water Regulation

NTNCWS Non-transient Non-community Water System

NTTAA National Technology Transfer and Advancement Act

NTWC National Tribal Water Council

OGWDW Office of Ground Water and Drinking Water

OMB Office of Management and Budget

PFAS Per- and Polyfluoroalkyl Substances

PFBA Perfluorobutanoic Acid

PFBS Perfluorobutanesulfonic Acid

PFDA Perfluorodecanoic Acid

PFDoA Perfluorododecanoic Acid

PFEESA Perfluoro (2‐ethoxyethane) Sulfonic Acid

PFHpA Perfluoroheptanoic Acid

PFHpS Perfluoroheptanesulfonic Acid

PFHxA Perfluorohexanoic Acid

PFHxS Perfluorohexanesulfonic Acid

PFMBA Perfluoro‐4‐methoxybutanoic Acid

PFMPA Perfluoro‐3‐methoxypropanoic Acid

PFNA Perfluorononanoic Acid

PFOA Perfluorooctanoic Acid

PFOS Perfluorooctanesulfonic Acid

PFPeA Perfluoropentanoic Acid

PFPeS Perfluoropentanesulfonic Acid

PFTA Perfluorotetradecanoic Acid

PFTrDA Perfluorotridecanoic Acid

PFUnA Perfluoroundecanoic Acid

PN Public Notice

PRA Paperwork Reduction Act

PT Proficiency Testing

PWS Public Water System

QC Quality Control

RFA Regulatory Flexibility Act

SBA Small Business Administration

SBREFA Small Business Regulatory Enforcement Fairness Act

SDWA Safe Drinking Water Act

SDWARS Safe Drinking Water Accession and Review System

SDWIS/Fed Safe Drinking Water Information System Federal Reporting Services

SM Standard Methods for the Examination of Water and Wastewater

SOP Standard Operating Procedure

SPE Solid Phase Extraction

SRMD Standards and Risk Management Division

SW Surface Water

SWTR Surface Water Treatment Rule

TNCWS Transient Non-community Water System

TOF Total Organic Fluorine

TOP Total Oxidizable Precursors

UCMR Unregulated Contaminant Monitoring Rule

UMRA Unfunded Mandates Reform Act of 1995

U.S. United States

USEPA United States Environmental Protection Agency

I. Summary Information

A. Purpose of the Regulatory Action

1. What action is EPA taking?

This final rule requires certain public water systems (PWSs), described in section I.A.2 of this preamble, to collect national occurrence data for 29 PFAS and lithium. PFAS and lithium are not currently subject to national primary drinking water regulations, and EPA is requiring collection of data under UCMR 5 to inform EPA regulatory determinations and risk-management decisions. Consistent with EPA's PFAS Strategic Roadmap, UCMR 5 will provide new data critically needed to improve EPA's understanding of the frequency that 29 PFAS (and lithium) are found in the nation's drinking water systems and at what levels. This data will ensure science-based decision-making and help prioritize protection of disadvantaged communities.

2. Does this action apply to me?

This final rule applies to PWSs described in this section. PWSs are systems that provide water for human consumption through pipes, or constructed conveyances, to at least 15 service connections or that regularly serve an average of at least 25 individuals daily at least 60 days out of the year. A community water system (CWS) is a PWS that has at least 15 service connections used by year-round residents or regularly serves at least 25 year-round residents. A non-transient non-community water system (NTNCWS) is a PWS that is not a CWS and that regularly serves at least 25 of the same people over 6 months per year. Under this final rule, all large CWSs and NTNCWSs serving more than 10,000 people are required to monitor. In addition, small CWSs and NTNCWSs serving between 3,300 and 10,000 people are required to monitor (subject to available EPA appropriations and EPA notification of such requirement) as are the PWSs included in a nationally representative sample of CWSs and NTNCWSs serving between 25 and 3,299 people (see “Selection of Nationally Representative Public Water Systems for the Unregulated Contaminant Monitoring Rule: 2021 Update” for a description of the statistical approach for EPA's selection of the nationally representative sample (USEPA, 2021a), available in the UCMR 5 public docket). EPA expects to clarify the monitoring responsibilities for affected small systems by approximately July 1 of each year preceding sample collection, based on the availability of appropriations each year.

As in previous UCMRs, transient non-community water systems (TNCWSs) ( i.e., non-community water systems that do not regularly serve at least 25 of the same people over 6 months per year) are not required to monitor under UCMR 5. EPA leads UCMR 5 monitoring as a direct-implementation program. States, Territories, and Tribes with primary enforcement responsibility (primacy) to administer the regulatory program for PWSs under SDWA (hereinafter collectively referred to in this document as “states”), can participate in the implementation of UCMR 5 through voluntary Partnership Agreements (see discussion of Partnership Agreements in Section III.D of this preamble). Under Partnership Agreements, states can choose to be involved in various aspects of UCMR 5 monitoring for PWSs they oversee; however, the PWS remains responsible for compliance with the final rule. Potentially regulated categories and entities are identified in the following table.


Category	Examples of potentially regulated entities	NAICS *
* NAICS = North American Industry Classification System.
State, local, & Tribal governments	State, local, and Tribal governments that analyze water samples on behalf of PWSs required to conduct such analysis; State, local, and Tribal governments that directly operate CWSs and NTNCWSs required to monitor	924110
Industry	Private operators of CWSs and NTNCWSs required to monitor	221310
Municipalities	Municipal operators of CWSs and NTNCWSs required to monitor	924110

This table is not intended to be exhaustive, but rather provides a guide for readers regarding entities likely to be regulated by this action. This table lists the types of entities that EPA is aware could potentially be regulated by this action. Other types of entities not listed in the table could also be regulated. To determine whether your entity is regulated by this action, you should carefully examine the definition of PWS found in Title 40 in the Code of Federal Regulations (CFR) at 40 CFR 141.2 and 141.3, and the applicability criteria found in 40 CFR 141.40(a)(1) and (2). If you have questions regarding the applicability of this action to a particular entity, please consult the contacts listed in the preceding FOR FURTHER INFORMATION CONTACT section of this preamble.

3. What is EPA's authority for taking this action?

As part of EPA's responsibilities under SDWA, the agency implements section 1445(a)(2), Monitoring Program for Unregulated Contaminants. This section, as amended in 1996, requires that once every five years, beginning in August 1999, EPA issue a list of not more than 30 unregulated contaminants to be monitored by PWSs. SDWA requires that EPA enter the monitoring data into the agency's publicly available National Contaminant Occurrence Database (NCOD) at https://www.epa.gov/sdwa/national-contaminant-occurrence-database-ncod.

EPA must vary the frequency and schedule for monitoring based on the number of people served, the source of supply, and the contaminants likely to be found. EPA is using SDWA Section 1445(a)(2) authority as the basis for monitoring the unregulated contaminants under this final rule.

Section 2021 of America's Water Infrastructure Act of 2018 (AWIA) (Pub. L. 115-270) amended SDWA and specifies that, subject to the availability of EPA appropriations for such purpose and sufficient laboratory capacity, EPA's UCMR program must require all PWSs serving between 3,300 and 10,000 people to monitor for the contaminants in a particular UCMR cycle, and ensure that only a nationally representative sample of systems serving between 25 and 3,299 people are required to monitor for those contaminants. EPA has developed this final rule anticipating that necessary appropriations will become available; however, to date, Congress has not appropriated additional funding ( i.e., funding in addition to the $2.0 million that EPA has historically set aside each year from the Drinking Water State Revolving Fund, using SDWA authority, to support UCMR monitoring at small systems) to cover monitoring expenses for all PWSs serving between 3,300 and 10,000 people. Provisions in the final rule enable the agency to adjust the number of these systems that must monitor based upon available appropriations.

AWIA did not amend the original SDWA requirements for large PWSs. Therefore, PWSs serving a population larger than 10,000 people continue to be responsible for participating in UCMR.

Section 7311 of the National Defense Authorization Act for Fiscal Year 2020 (NDAA) (Pub. L. 116-92) amended SDWA and specifies that EPA shall include all PFAS in UCMR 5 for which a drinking water method has been validated by the Administrator and that are not subject to a national primary drinking water regulation.

4. What is the applicability date?

The applicability date represents an internal milestone used by EPA to determine if a PWS is included in the UCMR program and whether it will be treated as small ( i.e., serving 25 to 10,000 people) or large ( i.e., serving more than 10,000 people). It does not represent a date by which respondents need to take any action. The determination of whether a PWS is required to monitor under UCMR 5 is based on the type of system ( e.g., CWS, NTNCWS, etc.) and its retail population served, as indicated by the Safe Drinking Water Information System Federal Reporting Services (SDWIS/Fed) inventory on February 1, 2021. SDWIS/Fed can be accessed at https://www.epa.gov/ground-water-and-drinking-water/safe-drinking-water-information-system-sdwis-federal-reporting. Examining water system type and population served as of February 1, 2021 allowed EPA to develop a draft list of PWSs tentatively subject to UCMR 5 and share that list with the states during 2021 for their review. This advance planning and review then allowed EPA to load state-reviewed PWS information into EPA's reporting system so that those PWSs can be promptly notified upon publication of this final rule. If a PWS receives such notification and believes it has been erroneously included in UCMR 5 based on an incorrect retail population, the system should contact their state authority to verify its population served as of the applicability date. If an error impacting rule applicability is identified, the state or the PWS may contact EPA to address the error. The 5-year UCMR 5 cycle spans January 2022 through December 2026, with preparations in 2022, sample collection between January 1, 2023, and December 31, 2025, and completion of data reporting in 2026. By approximately July 1 of the year prior to each year's sample collection ( i.e., by July 1, 2022 for 2023 sampling; by July 1, 2023 for 2024 sampling; and by July 1, 2024 for 2025 sampling) EPA expects to determine whether it has received necessary appropriations to support its plan to monitor at all systems serving between 3,300 and 10,000 people and at a representative group of 800 smaller systems. As EPA finalizes its small-system plan for each sample collection year, the agency will notify the small PWSs accordingly.

B. Summary of the Regulatory Action

EPA is requiring certain PWSs to collect occurrence data for 29 PFAS and lithium. This document addresses key aspects of UCMR 5, including the following: Analytical methods to measure the contaminants; laboratory approval; monitoring timeframe; sampling locations; data elements ( i.e., information required to be collected along with the occurrence data); data reporting timeframes; monitoring cost; public participation; conforming and editorial changes, such as those necessary to remove requirements solely related to UCMR 4; and EPA responses to public comments on the proposed rule. This document also discusses the implication for UCMR 5 of the AWIA Section 2021(a) requirement that EPA collect monitoring data from all systems serving more than 3,300 people “subject to the availability of appropriations.”

Regardless of whether EPA is able to carry out the small-system monitoring as planned, or instead reduces the scope of that monitoring, the small-system data collection, coupled with data collection from all systems serving more than 10,000 people under this action, will provide scientifically valid data on the national occurrence of 29 PFAS and lithium in drinking water. The UCMR data are the primary source of national occurrence data that EPA uses to inform regulatory and other risk management decisions for drinking water contaminant candidates.

EPA is required under SDWA Section 1445(a)(2)(C)(ii) to pay the “reasonable cost of such testing and laboratory analysis” for all applicable PWSs serving 25 to 10,000 people. Consistent with AWIA, EPA will require monitoring at as many systems serving 3,300 to 10,000 people as appropriations support (see Section IV.B of this preamble for more information on the agency's sampling design).

The agency received several public comments expressing concern that significant laboratory capacity will be needed to support the full scope envisioned for UCMR 5 PFAS monitoring. EPA anticipates that sufficient laboratory capacity will exist to support the expanded UCMR 5 scope. EPA's experience over the first four cycles of UCMR implementation has been that laboratory capacity quickly grows to meet UCMR demand. EPA also notes that the number of laboratories successfully participating in the early stages of the UCMR 5 laboratory approval program is a good indicator that there will be a robust national network of laboratories experienced in PFAS drinking water analysis.

By early 2022, EPA will notify all small CWSs and NTNCWSs serving between 3,300 and 10,000 people of their anticipated requirement to monitor, which EPA expects to confirm and schedule by July 1 preceding each collection year based on the availability of appropriations. The nationally representative sample of smaller PWSs described in Section I.A of this preamble will be similarly notified and advised of their schedules.

This final rule addresses the requirements of the NDAA by including all 29 PFAS that are within the scope of EPA Methods 533 and 537.1. Both of these methods have been validated by EPA for drinking water analysis.

C. Economic Analysis

1. What is the estimated cost of this action?

EPA estimates the total average national cost of this action would be $21 million per year over the 5-year effective period of the final rule (2022-2026) assuming EPA collects information from all systems serving between 3,300 and 10,000 people. All of these costs are associated with paperwork burden under the Paperwork Reduction Act (PRA). EPA discusses the expected costs as well as documents the assumptions and data sources used in the preparation of this estimate in the “Information Collection Request for the Final Unregulated Contaminant Monitoring Rule (UCMR 5)” (USEPA, 2021b). Costs are incurred by large PWSs (for sampling and analysis); small PWSs (for sampling); state regulatory agencies ( i.e., those who volunteer to assist EPA with oversight and implementation support); and EPA (for regulatory support and oversight activities, and analytical and shipping costs for samples from small PWSs). These costs are also summarized in Exhibit 1 of this preamble. EPA's estimates are based on executing the full monitoring plan for small systems ( i.e., including all systems serving 3,300 to 10,000 people and a representative group of 800 smaller systems). As such, those estimates represent an upper bound. If EPA does not receive the necessary appropriations in one or more of the collections years—and thus collects data from fewer small systems—the actual costs would be lower than those estimated here.

EPA received several comments on the cost of monitoring. EPA has accounted for the cost/burden associated with all of the PWS activities as part of the comprehensive cost/burden estimates. In order to provide the most accurate and updated cost estimate, EPA re-examined labor burden estimates for states, EPA, and PWS activities and updated costs of laboratory services for sample analysis, based on consultations with national drinking water laboratories, when developing this final rule.

The costs for a particular UCMR cycle are heavily influenced by the selection of contaminants and associated analytical methods. EPA identified three EPA-developed analytical methods (and, in the case of lithium, multiple optional alternative methods) to analyze samples for UCMR 5 contaminants. EPA's estimate of the UCMR 5 analytical cost is $740 per sample set ( i.e., $740 to analyze a set of samples from one sample point and one sample event for the 30 UCMR 5 contaminants).

Exhibit 1 of this preamble details the EPA-estimated annual average national costs (accounting for labor and non-labor expenses). Laboratory analysis and sample shipping account for approximately 65 percent of the estimated total national cost for the implementation of UCMR 5. EPA estimated laboratory costs based on consultations with multiple commercial drinking water testing laboratories. EPA's cost estimates for the laboratory methods include shipping and analysis.

EPA expects that states will incur modest labor costs associated with voluntary assistance with the implementation of UCMR 5. EPA estimated state costs using the relevant assumptions from the State Resource Model developed by the Association of State Drinking Water Administrators (ASDWA) (ASDWA, 2013) to help states forecast resource needs. Model estimates were adjusted to account for actual levels of state participation under UCMR 4. State assistance with EPA's implementation of UCMR 5 is voluntary; thus, the level of effort is expected to vary among states and will depend on their individual agreements with EPA.

EPA assumes that one-third of the systems will collect samples during each of the three sample-collection years from January 2023 through December 2025.

Exhibit 1—Estimated Average Annual Costs of UCMR 5 ¹
Entity	Average annual cost (million) (2022-2026) ²
¹ Based on the scope of small-system monitoring described in AWIA.
² Totals may not equal the sum of components due to rounding.
³ Labor costs pertain to PWSs, states, and EPA. Costs include activities such as reading the final rule, notifying systems selected to participate, sample collection, data review, reporting, and record keeping.
⁴ Non-labor costs will be incurred primarily by EPA and by large and very large PWSs. They include the cost of shipping samples to laboratories for testing and the cost of the laboratory analyses.
⁵ For a typical UCMR program that involves the expanded scope prescribed by AWIA, EPA estimates an average annual cost to the agency of $17M/year (over a 5-year cycle) ($2M/year for the representative sample of 800 PWSs serving between 25 and 3,299 people and $15M/year for all PWSs serving between 3,300 and 10,000 people). The projected cost to EPA for UCMR 5 implementation is lower than for a typical UCMR program because of lower sample analysis expenses. Those lower expenses are a result of analytical method efficiencies ( i.e., being able to monitor for 30 chemicals with only three analytical methods).
Small PWSs (25-10,000), including labor ³ only (non-labor costs ⁴ paid for by EPA)	$0.3
Large PWSs (10,001-100,000), including labor and non-labor costs	7.0
Very Large PWSs (100,001 and greater), including labor and non-labor costs	2.2
States, including labor costs related to implementation coordination	0.8
EPA, including labor for implementation and non-labor for small system testing	⁵ 10.5
Average Annual National Total	20.8

Additional details regarding EPA's cost assumptions and estimates can be found in the Information Collection Request (ICR) (USEPA, 2021b), ICR Number 2040-0304, which presents estimated cost and labor hours for the 5-year UCMR 5 period of 2022-2026. Copies of the ICR may be obtained from the EPA public docket for this final rule under Docket ID No. EPA-HQ-OW-2020-0530.

2. What are the benefits of this action?

The public benefits from the information about whether or not unregulated contaminants are present in their drinking water. If contaminants are not found, consumer confidence in their drinking water should improve. If contaminants are found, related health effects may be avoided when subsequent actions, such as regulations, are implemented, reducing or eliminating those contaminants.

II. Public Participation

A. What meetings have been held in preparation for UCMR 5?

EPA held three public meetings on UCMR 5 over the period of 2018 through 2021. EPA held a meeting focused on drinking water methods for unregulated contaminants on June 6, 2018, in Cincinnati, Ohio. Representatives from state agencies, laboratories, PWSs, environmental organizations, and drinking water associations joined the meeting via webinar and in person. Meeting topics included an overview of regulatory process elements (including the Contaminant Candidate List (CCL), UCMR, and Regulatory Determination), and drinking water methods under development (see USEPA, 2018 for presentation materials). EPA held a second meeting on July 16, 2019, in Cincinnati, Ohio. Representatives from State agencies, Tribes, laboratories, PWSs, environmental organizations, and drinking water associations participated in the meeting via webinar and in person. Meeting topics included the impacts of AWIA, analytical methods and contaminants being considered by EPA, potential sampling design, and other possible aspects of the UCMR 5 approach (see USEPA, 2019a for meeting materials). EPA held two identical virtual meetings on April 6 and 7, 2021, during the public comment period for the proposed rule (see USEPA, 2021c for presentation materials). Topics included the proposed UCMR 5 monitoring requirements, analyte selection and rationale, analytical methods, the laboratory approval process, and ground water representative monitoring plans (GWRMPs). Representatives of state agencies, laboratories, PWSs, environmental organizations, and drinking water associations participated in the meeting via webinar. In Section II.B of this preamble, the agency is announcing additional meetings to be held in 2022, which will assist with implementation.

B. How do I participate in the upcoming meetings?

EPA will hold multiple virtual meetings during 2022 to discuss UCMR 5 implementation planning, data reporting using Safe Drinking Water Accession and Review System (SDWARS), and best practices for sample collection. Dates and times of the upcoming meetings will be posted on EPA's website at https://www.epa.gov/dwucmr/unregulated-contaminant-monitoring-rule-ucmr-meetings-and-materials. EPA anticipates hosting the meetings focused on implementation planning in spring 2022, and the SDWARS and sample-collection meetings in fall 2022. Stakeholders who have participated in past UCMR meetings and/or those who register to use SDWARS will receive notification of these events. Other interested stakeholders are also welcome to participate.

1. Meeting Participation

Those who wish to participate in the public meetings, via webinar, can find information on how to register at https://www.epa.gov/dwucmr/unregulated-contaminant-monitoring-rule-ucmr-meetings-and-materials. The number of webinar connections available for the meetings are limited and will be available on a first-come, first-served basis. If stakeholder interest results in exceeding the maximum number of available connections for participants in upcoming webinar offerings, EPA may schedule additional webinars, with dates and times posted on EPA's Unregulated Contaminant Monitoring Program Meetings and Materials web page at https://www.epa.gov/dwucmr/unregulated-contaminant-monitoring-rule-ucmr-meetings-and-materials.

2. Meeting Materials

EPA expects to send meeting materials by email to all registered participants prior to the meeting. The materials will be posted on EPA's website at https://www.epa.gov/dwucmr/unregulated-contaminant- monitoring-rule-ucmr-meetings-and-materials for people who do not participate in the webinar.

III. General Information

A. How are CCL, UCMR, Regulatory Determination process, and NCOD interrelated?

Under the 1996 amendments to SDWA, Congress established a multi-step, risk-based approach for determining which contaminants would become subject to drinking water standards. Under the first step, EPA is required to publish a CCL every five years that identifies contaminants that are not subject to any proposed or promulgated drinking water regulations, are known or anticipated to occur in PWSs, and may require future regulation under SDWA. EPA published the draft CCL 5 in the Federal Register on July 19, 2021 (86 FR 37948, July 19, 2021 (USEPA, 2021d)). Under the second step, EPA must require, every five years, monitoring of unregulated contaminants as described in this action. The third step requires EPA to determine, every five years, whether or not to regulate at least five contaminants from the CCL. Under Section 1412(b)(1)(A) of SDWA, EPA regulates a contaminant in drinking water if the Administrator determines that:

(1) The contaminant may have an adverse effect on the health of persons;

(2) The contaminant is known to occur or there is substantial likelihood that the contaminant will occur in PWSs with a frequency and at levels of public health concern; and

(3) In the sole judgment of the Administrator, regulation of such contaminant presents a meaningful opportunity for health risk reduction for persons served by PWSs.

For the contaminants that meet all three criteria, SDWA requires EPA to publish national primary drinking water regulations (NPDWRs). Information on the CCL and the regulatory determination process can be found at: https://www.epa.gov/ccl.

The data collected through the UCMR program are made available to the public through the National Contaminant Occurrence Database (NCOD) for drinking water. EPA developed the NCOD to satisfy requirements in SDWA Section 1445(g), to assemble and maintain a drinking water contaminant occurrence database for both regulated and unregulated contaminants in drinking water systems. NCOD houses data on unregulated contaminant occurrence; data from EPA's “Six-Year Review” of national drinking water regulations; and ambient and/or source water data. Section 1445(g)(3) of SDWA requires that EPA maintain UCMR data in the NCOD and use the data when evaluating the frequency and level of occurrence of contaminants in drinking water at a level of public health concern. UCMR results can be viewed by the public via NCOD ( https://www.epa.gov/sdwa/national-contaminant-occurrence-database-ncod ) or via the UCMR web page at: https://www.epa.gov/dwucmr.

B. What are the Consumer Confidence Reporting and Public Notice Reporting requirements for public water systems that are subject to UCMR?

In addition to reporting UCMR monitoring data to EPA, PWSs are responsible for presenting and addressing UCMR results in their annual Consumer Confidence Reports (CCRs) (40 CFR 141.153) and must address Public Notice (PN) requirements associated with UCMR (40 CFR 141.207). More details about the CCR and PN requirements can be viewed by the public at: https://www.epa.gov/ccr and https://www.epa.gov/dwreginfo/public-notification-rule, respectively.

C. What is the UCMR 5 timeline?

This final rule identifies a UCMR 5 sampling period of 2023 to 2025. Prior to 2023 EPA will coordinate laboratory approval, tentatively select representative small systems (USEPA, 2021a), organize Partnership Agreements, develop State Monitoring Plans (see Section III.D of this preamble), establish monitoring schedules and inventory, and conduct outreach and training. Exhibit 2 of this preamble illustrates the major activities that EPA expects will take place in preparation for and during the implementation of UCMR 5.

BILLING CODE 6560-50-P

BILLING CODE 6560-50-C

D. What is the role of “States” in UCMR?

UCMR is a direct implementation rule ( i.e., EPA has primary responsibility for its implementation) and state participation is voluntary. Under the previous UCMR cycles, specific activities that individual states agreed to carry out or assist with were identified and established exclusively through Partnership Agreements. Through Partnership Agreements, states can help EPA implement UCMR and help ensure that the UCMR data are of the highest quality possible to best support the agency decision making. Under UCMR 5, EPA will continue to use the Partnership Agreement process to determine and document the following: The process for review and revision of the State Monitoring Plans; replacing and updating PWS information, including inventory ( i.e., PWS identification codes (PWSID), facility identification code along with associated facility types and water source type, etc.); review of proposed GWRMPs; notification and instructions for systems; and compliance assistance. EPA recognizes that states often have the best information about their PWSs and encourages them to partner in the UCMR 5 program.

E. How did EPA consider Children's Environmental Health?

By monitoring for unregulated contaminants that may pose health risks via drinking water, UCMR furthers the protection of public health for all citizens, including children. Children consume more water per unit of body weight compared to adults. Moreover, formula-fed infants drink a large amount of water compared to their body weight; thus, children's exposure to contaminants in drinking water may present a disproportionate health risk (USEPA, 2011). The objective of UCMR 5 is to collect nationally representative drinking water occurrence data on unregulated contaminants for future regulatory consideration. Information on the prioritization process, as well as contaminant-specific information ( e.g., source, use, production, release, persistence, mobility, health effects, and occurrence), that EPA used to select the analyte list, is contained in “Information Compendium for Contaminants for the Final Unregulated Contaminant Monitoring Rule (UCMR 5)” (USEPA, 2021e), available in the UCMR 5 public docket.

Since this is a final rule to monitor for contaminants and not to reduce their presence in drinking water to an acceptable level, the rule does not concern environmental health or safety risks presenting a disproportionate risk to children that would be addressed by this action (See Section V.G Executive Order 13045 of this preamble). Therefore, Executive Order 13045 does not apply to UCMR. However, EPA's Policy on Evaluating Health Risks to Children, which ensures that the health of infants and children is explicitly considered in the agency's decision making, is applicable, see: https://www.epa.gov/children/epas-policy-evaluating-risk-children.

EPA considered children's health risks during the development of UCMR 5. This included considering public comments about candidate contaminant priorities. Many commenters supported the agency's inclusion of PFAS and lithium in UCMR 5. Some commenters requested that EPA consider children and infant health risks in its risk communication for UCMR 5.

Using quantitation data from multiple laboratories, EPA establishes statistically-based UCMR reporting levels the agency considers feasible for the national network of approved drinking water laboratories. EPA generally sets the reporting levels as low as is technologically practical for measurement by that national network of laboratories, even if that level is well below concentrations that are currently associated with known or suspected health effects. In doing so, EPA positions itself to better address contaminant risk information in the future, including that associated with unique risks to children.

F. How did EPA address Environmental Justice (EJ)?

EPA has concluded that this action is not subject to Executive Order 12898 because it does not establish an environmental health or safety standard (see Section V.J Executive Order 12898 of this preamble). EPA Administrator Regan issued a directive to all EPA staff to incorporate environmental justice (EJ) into the agency's work, including regulatory activities, such as integrating EJ considerations into the regulatory development processes and considering regulatory options to maximize benefits to communities that “continue to suffer from disproportionately high pollution levels and the resulting adverse health and environmental impacts.” In keeping with this directive, and consistent with AWIA, EPA will, subject to the availability of sufficient appropriations, expand UCMR 5 to include all PWSs serving between 3,300 and 10,000 people as described in Sections I.A.4 and IV.B of this preamble. If there are sufficient appropriations, the expansion in the number of participating PWSs will provide a more comprehensive assessment of contaminant occurrence data from small and rural communities, including disadvantaged communities.

By developing a national characterization of unregulated contaminants that may pose health risks via drinking water from PWSs, UCMR furthers the protection of public health for all citizens. If EPA receives the needed appropriations, the expansion in monitoring scope reflected in UCMR 5 ( i.e., including all PWSs serving 3,300 to 10,000 people) will better support state and regional analyses and determination of potential EJ-related issues that need to be addressed. EPA structured the UCMR 5 rulemaking process to allow for meaningful involvement and transparency. EPA organized public meetings and webinars to share information regarding the development and implementation of UCMR 5; consulted with Tribal governments; and convened a workgroup that included representatives from several states. EPA will support stakeholder interest in UCMR 5 results by making them publicly available, as described in Section III.A of this preamble, and by developing additional risk-communication materials to help individuals and communities understand the significance of contaminant occurrence.

EPA received multiple comments on environmental justice considerations. Commenters expressed support for the continued collection of U.S. Postal Service Zip Codes for each PWS's service area and requested that EPA provide multilingual UCMR materials. EPA will continue to collect Zip Codes for UCMR 5, as collected under UCMR 3 and UCMR 4, to support potential assessments of whether or not certain communities are disproportionately impacted by particular drinking water contaminants. EPA also intends to develop the sampling instructions, fact sheets, and data summaries in both English and Spanish.

G. How did EPA coordinate with Indian Tribal Governments?

EPA has concluded that this action has Tribal implications. However, it will neither impose substantial direct compliance costs on federally recognized Tribal governments, nor preempt Tribal law. (See section V.F Executive Order 13175 of this preamble).

EPA consulted with Tribal officials under the EPA Policy on Consultation and Coordination with Indian Tribes early in the process of developing this action to ensure meaningful and timely input into its development. EPA initiated the Tribal consultation and coordination process before proposing the rule by mailing a “Notification of Consultation and Coordination” letter on June 26, 2019, to the Tribal leadership of the then 573 federally recognized Tribes. The letter invited Tribal leaders and representatives of Tribal governments to participate in an August 6, 2019, UCMR 5 Tribal consultation and coordination informational meeting. Presentation topics included an overview of the UCMR program, potential approaches to monitoring and implementation for UCMR 5, and the UCMR 5 contaminants and analytical methods under consideration. After the presentation, EPA provided an opportunity for input and questions on the action. Eight representatives from five Tribes attended the August meeting. Tribal representatives asked clarifying questions regarding program costs to PWSs and changes in PWS participation per AWIA. EPA addressed the questions during the meeting. Following the meeting, EPA received and addressed one additional clarifying question from a Tribal representative during the Tribal consultation process. No other Tribal representatives submitted written comments during the UCMR 5 consultation comment period that ended September 1, 2019.

Prior to the August 2019 meeting, EPA provided additional opportunities for Tribal officials to provide meaningful and timely input into the development of the proposed rule. On July 10, 2019, EPA participated in a monthly conference call with the National Tribal Water Council (NTWC). EPA shared a brief summary of UCMR statutory requirements with the Council and highlighted the upcoming official Tribal meeting. EPA also invited Tribal leaders and representatives to participate in a public meeting, held on July 16, 2019, to discuss the development of the proposed rule. Representatives from six Tribes participated in the public meeting. Following the publication of the proposal, EPA advised the Indian Health Services of the 60-day public comment period to assist with facilitating additional Tribal comments on the proposed rule. EPA received no public comments from Tribal officials.

A complete summary of the consultation, titled, “Summary of the Tribal Coordination and Consultation Process for the Fifth Unregulated Contaminant Monitoring Rule (UCMR 5) Proposal,” is provided in the UCMR 5 public docket listed in the ADDRESSES section of this preamble.

H. How are laboratories approved for UCMR 5 analyses?

Consistent with prior UCMRs, this action maintains the requirement that PWSs use laboratories approved by EPA to analyze UCMR 5 samples. Interested laboratories are encouraged to apply for EPA approval as early as possible. The UCMR 5 laboratory approval process, which began with the publication of the UCMR 5 proposal, is designed to assess whether laboratories possess the required equipment and can meet laboratory-performance and data-reporting criteria described in this action.

EPA expects demand for laboratory support to increase significantly based on the greater number of PWSs expected to participate in UCMR 5. EPA anticipates that the number of participating small water systems will increase from the typical 800 to approximately 6,000 (see Exhibit 5 in Section IV.B of this preamble). In preparation for this increase, EPA will solicit proposals and award contracts to laboratories to support small system monitoring prior to the end of the proficiency testing (PT) program. As in previous UCMR programs, EPA expects that laboratories awarded contracts by EPA will be required to first be approved to perform all methods. The requirements for the laboratory approval process are described in steps 1 through 6 of the following paragraphs.

EPA will require laboratories seeking approval to: (1) Provide EPA with data documenting an initial demonstration of capability (IDC) as outlined in each method; (2) verify successful performance at or below the minimum reporting levels (MRLs) as specified in this action; (3) provide information about laboratory standard operating procedures (SOPs); and (4) participate in two EPA PT studies for the analytes of interest. Audits of laboratories may be conducted by EPA prior to and/or following approval, and maintaining approval is contingent on timely and accurate reporting. The “UCMR 5 Laboratory Approval Manual” (USEPA, 2021f), available in the UCMR 5 public docket, provides more specific guidance on EPA laboratory approval program and the specific method acceptance criteria. EPA has included sample-collection procedures that are specific to the methods in the “UCMR 5 Laboratory Manual,” and will address these procedures in our outreach to the PWSs that will be collecting samples.

The UCMR 5 laboratory approval program will provide an assessment of the ability of laboratories to perform analyses using the methods listed in 40 CFR 141.40(a)(3), Table 1 of this preamble. Laboratory participation in the program is voluntary. However, as in the previous UCMRs, EPA will require PWSs to exclusively use laboratories that have been approved under the program. EPA will post a list of approved UCMR 5 laboratories to https://www.epa.gov/dwucmr and will bring this to the attention of the PWSs in our outreach.

1. Request To Participate

Laboratories interested in the UCMR 5 laboratory approval program first email EPA at: UCMR_Lab_Approval@epa.gov to request registration materials. EPA began accepting requests beginning with the publication of the proposal in the Federal Register .

2. Registration

Laboratory applicants provide registration information that includes laboratory name, mailing address, shipping address, contact name, phone number, email address, and a list of the UCMR 5 methods for which the laboratory is seeking approval. This registration step provides EPA with the necessary contact information and ensures that each laboratory receives a customized application package.

3. Application Package

Laboratory applicants will complete and return a customized application package that includes the following: IDC data, including precision, accuracy, and results of MRL studies; information regarding analytical equipment and other materials; proof of current drinking water laboratory certification (for select compliance monitoring methods); method-specific SOPs; and example chromatograms for each method under review.

As a condition of receiving and maintaining approval, the laboratory must promptly post UCMR 5 monitoring results and quality control data that meet method criteria (on behalf of its PWS clients) to EPA's UCMR electronic data reporting system, SDWARS.

Based on the January 1, 2023 start for UCMR 5 sample collection, the deadline for a laboratory to submit the necessary registration and application information is August 1, 2022.

4. EPA's Review of Application Package

EPA will review the application packages and, if necessary, request follow-up information. Laboratories that successfully complete the application process become eligible to participate in the UCMR 5 PT program.

5. Proficiency Testing

A PT sample is a synthetic sample containing a concentration of an analyte or mixture of analytes that is known to EPA, but unknown to the laboratory. To be approved, a laboratory must meet specific acceptance criteria for the analysis of a UCMR 5 PT sample(s) for each analyte in each method, for which the laboratory is seeking approval. EPA offered three PT studies between publication of the proposed rule and final rule, and anticipates offering at least two additional studies. Interested laboratories must participate in and report data for at least two PT studies. This allows EPA to collect a robust dataset for PT results, and provides laboratories with extra analytical experience using UCMR 5 methods. Laboratories must pass a PT for every analyte in the method to be approved for that method and may participate in multiple PT studies in order to produce passing results for each analyte. EPA has taken this approach in UCMR 5, recognizing that EPA Method 533 contains 25 analytes. EPA does not expect to conduct additional PT studies after the start of PWS monitoring; however, EPA expects to conduct laboratory audits (remote and/or on-site) throughout the implementation of UCMR 5 on an as needed and/or random basis. Initial laboratory approval is contingent on successful completion of PT studies, which includes properly uploading the PT results to SDWARS. Continued laboratory approval is contingent on successful completion of the audit process and satisfactorily meeting all the other stated conditions.

6. Written EPA Approval

For laboratories that have already successfully completed steps 1 through 5, EPA sent the laboratory a notification letter listing the methods for which approval was “pending” ( i.e., pending promulgation of this final rule). Because no changes have been made to the final rule that impact the laboratory approval program, laboratories that received pending-approval letters will be notified of full approval without further action on their part. Approval actions for additional laboratories that successfully complete steps 1 through 5 will also be documented by EPA in writing.

I. What documents are being incorporated by reference?

The following methods are being incorporated by reference into this section for UCMR 5 monitoring. All method material is available for inspection electronically at https://www.regulations.gov (Docket ID No. EPA-HQ-OW-2020-0530), or from the sources listed for each method. The methods that may be used to support monitoring under this final rule are as follows:

1. Methods From the U.S. Environmental Protection Agency

The following methods are available at EPA's Docket No. EPA-HQ-OW-2020-0530.

(i) EPA Method 200.7 “Determination of Metals and Trace Elements in Water and Wastes by Inductively Coupled Plasma-Atomic Emission Spectrometry,” Revision 4.4, 1994. Available at https://www.epa.gov/esam/method-2007-determination-metals-and-trace-elements-water-and-wastes-inductively-coupled-plasma. This is an EPA method for the analysis of metals and trace elements in water by ICP-AES and may be used to measure lithium during UCMR 5. See also the discussion of non-EPA alternative methods for lithium in this section.

(ii) EPA Method 533 “Determination of Per- and Polyfluoroalkyl Substances in Drinking Water by Isotope Dilution Anion Exchange Solid Phase Extraction and Liquid Chromatography/Tandem Mass Spectrometry,” November 2019, EPA 815-B-19-020. Available at https://www.epa.gov/dwanalyticalmethods/analytical-methods-developed-epa-analysis-unregulated-contaminants. This is an EPA method for the analysis PFAS in drinking water using SPE and LC/MS/MS and is to be used to measure 25 PFAS during UCMR 5 (11Cl-PF3OUdS, 8:2 FTS, 4:2 FTS, 6:2 FTS, ADONA, 9Cl-PF3ONS, HFPO-DA (GenX), NFDHA, PFEESA, PFMPA, PFMBA, PFBS, PFBA, PFDA, PFDoA, PFHpS, PFHpA, PFHxS, PFHxA, PFNA, PFOS, PFOA, PFPeS, PFPeA, and PFUnA).

(iii) EPA Method 537.1 “Determination of Selected Per- and Polyfluorinated Alkyl Substances in Drinking Water by Solid Phase Extraction and Liquid Chromatography/Tandem Mass Spectrometry (LC/MS/MS),” Version 2.0, March 2020, EPA/600/R-20/006. Available at https://www.epa.gov/dwanalyticalmethods/analytical-methods-developed-epa-analysis-unregulated-contaminants. This is an EPA method for the analysis of PFAS in drinking water using SPE and LC/MS/MS and is to be used to measure four PFAS during UCMR 5 (NEtFOSAA, NMeFOSAA, PFTA, and PFTrDA).

2. Alternative Methods From American Public Health Association—Standard Methods (SM)

The following methods are from American Public Health—Standard Methods (SM), 800 I Street NW, Washington, DC 20001-3710.

(i) “Standard Methods for the Examination of Water & Wastewater,” 23rd edition (2017).

(a) SM 3120 B, “Metals by Plasma Emission Spectroscopy (2017): Inductively Coupled Plasma (ICP) Method.” This is a Standard Method for the analysis of metals in water and wastewater by emission spectroscopy using ICP and may be used for the analysis of lithium.

(ii) “Standard Methods Online,” approved 1999. Available for purchase at https://www.standardmethods.org.

(a) SM 3120 B, “Metals by Plasma Emission Spectroscopy: Inductively Coupled Plasma (ICP) Method, Standard Methods Online,” revised December 14, 2020. This is a Standard Method for the analysis of metals in water and wastewater by emission spectroscopy using ICP and may be used for the analysis of lithium.

3. Methods From ASTM International

The following methods are from ASTM International, 100 Barr Harbor Drive, West Conshohocken, PA 19428-2959.

(i) ASTM D1976-20, “Standard Test Method for Elements in Water by Inductively-Coupled Plasma Atomic Emission Spectroscopy,” approved May 1, 2020. Available for purchase at https://www.astm.org/Standards/D1976.htm. This is an ASTM method for the analysis of elements in water by ICP-AES and may be used to measure lithium.

IV. Description of Final Rule and Summary of Responses to Public Comments

EPA published “Revisions to the Unregulated Contaminant Monitoring Rule (UCMR 5) for Public Water Systems and Announcement of Public Meeting;” Proposed Rule, on March 11, 2021 (86 FR 13846, (USEPA, 2021g)). The UCMR 5 proposal identified three EPA analytical methods, and multiple alternative methods, to support water system monitoring for 30 UCMR 5 contaminants (29 PFAS and lithium) and detailed other potential changes relative to UCMR 4. Among the other changes reflected in the UCMR 5 proposal were the following: Requirement for water systems serving 3,300 to 10,000 people to monitor per AWIA requirements “subject to the availability of appropriations”; provisions for sampling frequency, timing, and locations; submission timeframe for GWRMPs; data reporting timeframes; and reporting requirements.

EPA received 75 sets of comments from 72 public commenters, including other federal agencies, state and local governments, utilities and utility stakeholder organizations, laboratories, academia, non-governmental organizations, and other interested stakeholders. After considering the comments, EPA developed the final UCMR 5 as described in Exhibit 3 of this preamble. Except as noted, the UCMR 5 final rule approach is consistent with the proposed rule. A track-changes version of the rule language, comparing UCMR 4 to UCMR 5, (“Revisions to 40 CFR 141.35 and 141.40” (USEPA, 2021h)), is included in the electronic docket listed in the ADDRESSES section of this preamble.

This section summarizes key aspects of this final rule and the associated comments received in response to the proposed rule. EPA has compiled all public comments and EPA's responses in the “Response to Comments on the Fifth Unregulated Contaminant Monitoring Rule (UCMR 5) Proposal,” (USEPA, 2021i), which can be found in the electronic docket listed in the ADDRESSES section of this preamble.

Exhibit 3—Key Elements of Final UCMR 5
Number	Title
CFR rule section		Description of section	Corresponding preamble section
Number	Title	Description of section	Corresponding preamble section
40 CFR 141.40(a)(3)	Contaminants in UCMR 5	Maintains proposed list of 29 PFAS and lithium for monitoring	IV.A
40 CFR 141.35(d), 40 CFR 141.40(a)(2)(ii), and 40 CFR 141.40(a)(4)(ii)	Scope of UCMR 5 applicability	Revises the scope of UCMR 5 to reflect that small CWSs and NTNCWSs serving 25 to 10,000 people will monitor (consistent with AWIA), if they are notified by the agency	IV.B
40 CFR 141.40(a)(i)(B)	Sampling frequency and timing	Maintains proposed sample frequency (four sample events for SW, two sample events for GW)	IV.C
40 CFR 141.35(c)(3)	Sampling locations and Ground Water Representative Monitoring Plans (GWRMPs)	Maintains proposed flexibility for PWSs to submit a GWRMP proposal to EPA	IV.D
40 CFR 141.35(c)(6)(ii) and 40 CFR 141.40(a)(5)(vi)	Reporting timeframe	Maintains proposed timeframe (“within 90 days from the sample collection date”) for laboratories to post and approve analytical results in EPA's electronic data reporting system (for review by the PWS). Maintains proposed timeframe (“30 days from when the laboratory posts the data to EPA's electronic data reporting system”) for PWSs to review, approve, and submit data to the state and EPA	IV.E
40 CFR 141.35(e)	Reporting requirements	Removes one proposed data element, maintains 27 proposed data elements, and clarifies the use of state data	IV.F
40 CFR 141.40(a)(3)	Minimum reporting levels (MRL)	Maintains proposed MRLs for contaminants	IV.G

A. What contaminants must be monitored under UCMR 5?

1. This Final Rule

EPA is maintaining the proposed list of UCMR 5 contaminants and the methods associated with analyzing those contaminants (see Exhibit 4 of this preamble). Further information on the prioritization process, as well as contaminant-specific information ( e.g., source, use, production, release, persistence, mobility, health effects, and occurrence), that EPA used to select the analyte list, is contained in “Information Compendium for Contaminants for the Final Unregulated Contaminant Monitoring Rule (UCMR 5)” (USEPA, 2021e). This Information Compendium can be found in the electronic docket listed in the ADDRESSES section of this preamble.

Exhibit 4—UCMR 5 Analytes

¹ EPA Method 533 (Solid phase extraction (SPE) liquid chromatography/tandem mass spectrometry (LC/MS/MS)) (USEPA, 2019b).
² EPA Method 537.1 Version 2.0 (Solid phase extraction (SPE) liquid chromatography/tandem mass spectrometry (LC/MS/MS)) (USEPA, 2020).
³ EPA Method 200.7 (Inductively coupled plasma-atomic emission spectrometry (ICP-AES)) (USEPA, 1994).
⁴ Standard Methods (SM) 3120 B (SM, 2017) or SM 3120 B-99 (SM Online, 1999).
⁵ ASTM International (ASTM) D1976-20 (ASTM, 2020).
Twenty-five Per- and Polyfluoroalkyl Substances (PFAS) using EPA Method 533 (SPE LC/MS/MS):
11-chloroeicosafluoro-3-oxaundecane-1-sulfonic acid (11Cl-PF3OUdS)	perfluorodecanoic acid (PFDA).
1H, 1H, 2H, 2H-perfluorodecane sulfonic acid (8:2 FTS)	perfluorododecanoic acid (PFDoA).
1H, 1H, 2H, 2H-perfluorohexane sulfonic acid (4:2 FTS)	perfluoroheptanesulfonic acid (PFHpS).
1H, 1H, 2H, 2H-perfluorooctane sulfonic acid (6:2 FTS)	perfluoroheptanoic acid (PFHpA).
4,8-dioxa-3H-perfluorononanoic acid (ADONA)	perfluorohexanesulfonic acid (PFHxS).
9-chlorohexadecafluoro-3-oxanone-1-sulfonic acid (9Cl-PF3ONS)	perfluorohexanoic acid (PFHxA).
hexafluoropropylene oxide dimer acid (HFPO-DA) (GenX)	perfluorononanoic acid (PFNA).
nonafluoro‐3,6‐dioxaheptanoic acid (NFDHA)	perfluorooctanesulfonic acid (PFOS).
perfluoro (2‐ethoxyethane) sulfonic acid (PFEESA)	perfluorooctanoic acid (PFOA).
perfluoro‐3‐methoxypropanoic acid (PFMPA)	perfluoropentanesulfonic acid (PFPeS).
perfluoro‐4‐methoxybutanoic acid (PFMBA)	perfluoropentanoic acid (PFPeA).
perfluorobutanesulfonic acid (PFBS)	perfluoroundecanoic acid (PFUnA).
perfluorobutanoic acid (PFBA)
Four Per- and Polyfluoroalkyl Substances (PFAS) using EPA Method 537.1 (SPE LC/MS/MS):
n-ethyl perfluorooctanesulfonamidoacetic acid (NEtFOSAA)	perfluorotetradecanoic acid (PFTA).
n-methyl perfluorooctanesulfonamidoacetic acid (NMeFOSAA)	perfluorotridecanoic acid (PFTrDA).
One Metal/Pharmaceutical using EPA Method 200.7 (ICP-AES) or alternate SM or ASTM:
lithium

2. Summary of Major Comments and EPA Responses

Those who expressed an opinion about the proposed UCMR 5 analytes were supportive of EPA's inclusion of the 29 PFAS and lithium. Commenters expressed mixed opinions on the consideration of additional contaminants, particularly “aggregate PFAS,” Legionella pneumophilia, haloacetonitriles, and 1,2,3-trichloropropane. The major comments and EPA responses regarding these contaminants are summarized in the discussion that follows.

a. Aggregate PFAS Measure

EPA received multiple comments encouraging the agency to validate and include a total organic fluorine (TOF) and/or total oxidizable precursors (TOP) technique in UCMR 5 as a screening tool to determine “total PFAS.” EPA also received comments expressing concern for the limitations of the analytical methodologies, including a lack of sensitivity and specificity for PFAS using TOF.

EPA has not identified a complete, validated, peer-reviewed aggregate PFAS method with the appropriate specificity and sensitivity to support UCMR 5 monitoring. EPA's Office of Water and Office of Research and Development are currently developing and evaluating methodologies for broader PFAS analysis in drinking water, however, the measurement approaches are subject to significant technical challenges. The sensitivity of TOF is currently in the low μg/L range, as opposed to the low ng/L range of interest required for PFAS analysis in drinking water. TOF is also not specific to PFAS. TOP, while focusing on PFAS, is limited to measuring compounds that can be detected by LC/MS/MS and the technique requires two LC/MS/MS analyses; one before oxidation and one after oxidation. EPA is evaluating the TOP approach to understand the degree to which certain precursors are oxidized, and subsequently measurable by LC/MS/MS, as well as the degree to which PFAS that were measured in the pre-oxidation sample are still measured post-oxidation.

EPA is also monitoring progress by commercial laboratories and academia. In 2020 and 2021, EPA contacted commercial laboratories that advertised TOF capability, and these laboratories indicated that they had not yet commercialized the TOF method (see Appendix 4 in “Response to Comments on the Fifth Unregulated Contaminant Monitoring Rule (UCMR 5) Proposal,” (USEPA, 2021i), which can be found in the electronic docket listed in the ADDRESSES section of this preamble). TOP has been more widely commercialized but is often used as an exploratory tool to estimate precursors.

In summary, there are still analytical challenges leading to uncertainties in the results using the TOF and TOP techniques. More research and method refinement are needed before a peer-reviewed validated method that meets UCMR quality control needs is available to address PFAS more broadly.

b. Legionella Pneumophila

Some comments supported EPA's proposal to not include Legionella pneumophila in UCMR 5, while others encouraged EPA to add it. EPA has decided not to include Legionella pneumophila in the final UCMR 5.

Under EPA's Surface Water Treatment Rule (SWTR), EPA established NPDWRs for Giardia, viruses, Legionella, turbidity and heterotrophic bacteria and set maximum contaminant level goals of zero for Giardia lamblia, viruses and Legionella pneumophila (54 FR 27486, June 29, 1989 (USEPA, 1989)). EPA is currently examining opportunities to enhance protection against Legionella pneumophila through revisions to the suite of Microbial and Disinfection Byproduct (MDBP) rules. In addition to the SWTR, the MDBP suite includes the Stage 1 and Stage 2 Disinfectants and Disinfection Byproduct Rules; the Interim Enhanced Surface Water Treatment Rule; and the Long Term 1 Enhanced Surface Water Treatment Rule.

As stated in the conclusions from EPA's third “Six-Year Review of Drinking Water Standards” (82 FR 3518, January 11, 2017 (USEPA, 2017)), “EPA identified the following NPDWRs under the SWTR as candidates for revision, because of the opportunity to further reduce residual risk from pathogens (including opportunistic pathogens such as Legionella ) beyond the risk addressed by the current SWTR.” In accordance with the dates in the Settlement Agreement between EPA and Waterkeeper Alliance ( Waterkeeper Alliance, Inc. v. U.S. EPA, No. 1:19-cv-00899-LJL (S.D.N.Y. Jun. 1, 2020)), the agency anticipates signing a proposal for revisions to the MDBP rules and a final action on the proposal by July 31, 2024 and September 30, 2027, respectively. EPA has concluded that UCMR 5 data collection for Legionella pneumophila would not be completed in time to meaningfully inform MDBP revision and that UCMR 5 data for Legionella pneumophila would soon lack significance because it would not reflect conditions in water systems after any regulatory revisions become effective (because water quality would be expected to change as a result of PWSs complying with such regulatory revisions).

EPA estimates that Legionella pneumophila monitoring under UCMR 5 would have added $10.5 million in new expenses for large PWSs, $20 million in new expenses for the agency for small system monitoring, and $0.5 million in new expenses for small PWSs and states over the 5-year UCMR period. Because the data would not be available in time to inform MDBP regulatory revisions and because MDBP revisions could change the presence of Legionella pneumophila in drinking water distribution systems ( Legionella occurrence may change, for example, if the required minimum disinfectant residual concentration is higher following MDBP revisions), EPA concluded that the expense of this monitoring is not warranted given the limited utility of the data.

c. Haloacetonitriles

Some commenters agreed with EPA's rationale for not including the four unregulated haloacetonitrile disinfection byproducts (DBPs) in UCMR 5, while others encouraged EPA to include them. EPA has decided not to include haloacetonitrile DBPs in the final UCMR 5.

As was the case with Legionella pneumophila, EPA has concluded that UCMR 5 data collection for haloacetonitriles would not be completed in time to meaningfully inform MDBP revision and that UCMR 5 data would not reflect conditions in water systems after any regulatory revisions become effective (haloacetonitrile occurrence may change, for example, if the required minimum disinfectant residual concentration is higher following MDBP revisions).

As with Legionella pneumophila, inclusion of haloacetonitriles in UCMR 5 would introduce significant monitoring and reporting complexity and cost compared to the sampling design for PFAS and lithium. If haloacetonitriles were to be added to UCMR 5, most of the additional expenses would be borne by large PWSs (for analysis of their samples) and EPA (for analysis of samples from small PWSs). EPA estimates this would result in $13 million in new expenses for large PWSs, $19 million in new expenses for the agency, and $0.5 million in new expenses for small PWSs and states over the 5-year UCMR period.

Because the data would not be available in time to inform MDBP regulatory revisions and because MDBP revisions could change the presence of haloacetonitriles in drinking water distribution systems, EPA concluded that the expense of this monitoring is not warranted given the limited utility of the data.

d. 1,2,3-Trichloropropane

EPA received some comments that support the agency's proposed decision to not include 1,2,3-trichloropropane (1,2,3-TCP) monitoring in UCMR 5, and others recommending that 1,2,3-TCP be included. EPA concluded that appropriate analytical methods are not currently available to support additional UCMR data collection ( i.e., above and beyond the data collection under UCMR 3 (USEPA, 2019c)).

Several commenters suggested that EPA consider analytical methods to monitor for 1,2,3-trichloropropane at lower levels. They suggested, for example, that the agency use California method SRL-524M (California DHS, 2002), which is prescribed by the state for compliance monitoring at 0.005 μg/L (5 ng/L). EPA has reviewed SRL 524M and determined that the associated quality control (QC) and IDC criteria do not meet the EPA's needs for drinking water analysis. See also EPA's “Response to Comments on the Fifth Unregulated Contaminant Monitoring Rule (UCMR 5) Proposal,” (USEPA, 2021i), which can be found in the electronic docket listed in the ADDRESSES section of this preamble.

Occurrence data collected during UCMR 3 (77 FR 26072, May 2, 2012 (USEPA, 2012)) for 1,2,3-trichloropropane may be found at https://www.epa.gov/dwucmr/occurrence-data-unregulated-contaminant-monitoring-rule#3.

B. What is the UCMR 5 sampling design?

1. This Final Rule

EPA has utilized up to three different tiers of contaminant monitoring, associated with three different “lists” of contaminants, in past UCMRs. EPA designed the monitoring tiers to reflect the availability and complexity of analytical methods, laboratory capacity, sampling frequency, and cost. The Assessment Monitoring tier is the largest in scope and is used to collect data to determine the national occurrence of “List 1” contaminants for the purpose of estimating national population exposure. Assessment Monitoring has been used in the four previous UCMRs to collect occurrence data from all systems serving more than 10,000 people and a representative sample of 800 smaller systems. Consistent with AWIA, the Assessment Monitoring approach was redesigned for UCMR 5 and reflects the plan, subject to additional appropriations being made available for this purpose, that would require all systems serving 3,300 or more people and a representative sample of systems serving 25 to 3,299 people to perform monitoring (USEPA, 2021a). The population-weighted sampling design for the nationally representative sample of small systems (used in previous UCMR cycles to select 800 systems serving 25 to 10,000 people and used in UCMR 5 to select 800 systems serving 25 to 3,299 people) calls for the sample to be stratified by water source type (ground water or surface water), service size category, and state (where each state is allocated a minimum of two systems in its State Monitoring Plan). The allowable margin of error at the 99 percent confidence level is ±1 percent for an expected contaminant occurrence of 1 percent at the national level. Assessment Monitoring is the primary tier used for contaminants and generally relies on analytical methods that use more common techniques that are expected to be widely available. EPA has used an Assessment Monitoring tier for 72 contaminants and contaminant groups over the course of UCMR 1 through UCMR 4. The agency is exclusively requiring Assessment Monitoring in UCMR 5. This monitoring approach yields the most complete set of occurrence data to support EPA's decision making.

2. Summary of Major Comments and EPA Responses

Many commenters expressed support for the increase in small system Assessment Monitoring, with no opposition to the inclusion of all PWSs serving 3,300 to 10,000 people in UCMR 5. The U.S. Small Business Administration asked that EPA clarify small-system responsibilities in the event of inadequate EPA funding to fully support the envisioned monitoring.

Recognizing the uncertainty in funding from year-to-year, the agency will implement a “monitor if notified” approach for PWSs serving 25 to 10,000 people. In 2022, EPA will notify the approximately 6,000 small PWSs tentatively selected for the expanded UCMR 5 (all PWSs serving 3,300 to 10,000 people and a statistically-based, nationally representative set of 800 PWSs serving 25 to 3,299 people) of their anticipated UCMR 5 monitoring requirements; that initial notification will specify that monitoring is conditioned on EPA having sufficient funds and will be confirmed in a second notification. Upon receiving appropriations for a particular year, EPA will determine the number of small PWSs whose monitoring is covered by the appropriations, and notify the included small PWSs of their upcoming requirements at least six months prior to their scheduled monitoring. EPA has made minor edits to 40 CFR 141.35 and 40 CFR 141.40 for consistency with this approach.

Additionally, to ensure that EPA has access to a nationally representative set of small-system data, even in the absence of sufficient appropriations to support the planned monitoring by small systems, a statistically-based nationally representative set of 800 PWSs will also be selected from among the PWSs serving 25 to 10,000 people. An updated description of the statistical approach for the nationally representative samples for UCMR 5 is available in the docket as “Selection of Nationally Representative Public Water Systems for the Unregulated Contaminant Monitoring Rule: 2021 Update” (USEPA 2021a).

To minimize the impact of the final rule on small systems (those serving 25 to 10,000 people), EPA pays for their sample kit preparation, sample shipping fees, and sample analysis. Large systems (those serving more than 10,000 people) pay for all costs associated with their monitoring. Exhibit 5 of this preamble shows a summary of the estimated number of PWSs subject to monitoring.

Exhibit 5—Systems Expected To Participate in UCMR 5 Monitoring
List 1 chemicals
¹ EPA pays for all analytical costs associated with monitoring at small systems.
² Counts for small PWSs serving 3,300-10,000 people are approximate.
³ Large system counts are approximate.
⁴ In the absence of appropriations to support monitoring at all PWSs serving 3,300 to 10,000 people, EPA could instead include as few as 400 PWSs serving 25 to 3,299 people and 400 PWSs serving 3,300 to 10,000 people (for a representative sample of 800 PWSs serving 25 to 10,000 people).
System size (number of people served)	National sample: Assessment monitoring design	Total number of systems per size category
System size (number of people served)	List 1 chemicals	Total number of systems per size category
Small Systems¹ (25-3,299)	800 randomly selected systems (CWSs and NTNCWSs)	⁴ 800
Small Systems¹² (3,300-10,000)	All systems (CWSs and NTNCWSs) subject to the availability of appropriations	⁴ 5,147
Large Systems³ (10,001 and over)	All systems (CWSs and NTNCWSs)	4,364
Total		10,311

C. What is the sampling frequency and timing?

1. This Final Rule

This final rule maintains the proposed sampling frequency and timeframe for Assessment Monitoring. On a per-system basis, the anticipated number of samples collected by each system is consistent with sample collection during prior UCMR cycles (although, as described elsewhere in this document, the number of water systems expected to participate in UCMR 5 is significantly greater under this final rule per AWIA). Water systems will be required to collect samples based on the typical UCMR sampling frequency and timeframe as follows: For surface water, ground water under the direct influence of surface water, and mixed locations, sampling will take place for four consecutive quarters over the course of 12 months (total of 4 sampling events). Sampling events will occur three months apart. For example, if the first sample is taken in January, the second will then occur anytime in April, the third will occur anytime in July, and the fourth will occur anytime in October. For ground water locations, sampling will take place twice over the course of 12 months (total of 2 sampling events). Sampling events will occur five to seven months apart. For example, if the first sample is taken in April, the second sample will then occur anytime in September, October, or November.

EPA, in conjunction with the states, will initially determine schedules (year and months of monitoring) for large water systems. Thereafter, large PWSs will have an opportunity to modify this initial schedule for planning purposes or other reasons ( e.g., to spread costs over multiple years, if a sampling location will be closed during the scheduled month of monitoring, etc.). EPA will schedule and coordinate small system monitoring (for PWSs serving 3,300 to 10,000 people and for the nationally representative sample of smaller PWSs) by working closely with partnering states. State Monitoring Plans provide an opportunity for states to review and revise the initial sampling schedules developed by EPA (see discussion of State Monitoring Plans in Section III.D of this preamble).

2. Summary of Major Comments and EPA Responses

EPA received two comments recommending that the agency reduce the sampling frequency for both ground water (GW) and surface water (SW) systems, including a suggestion that UCMR 5 require only one sample per system. EPA concluded that less frequent data collection would affect the integrity of the data and result in insufficient data to fulfill the needs envisioned by the 1996 SDWA Amendments, particularly with regard to supporting the Administrator's regulatory determinations and drinking water regulation development. Maintaining the proposed sampling frequency allows the resulting contaminant data to be analyzed for temporal variability, in addition to between-system variability. These analyses are not possible with a single-sample structure. When making regulatory determinations, EPA evaluates the number of systems (and populations) with means or single measured values above health levels of concern, as both values provide important information.

EPA acknowledges that based on UCMR 3 (77 FR 26072, May 2, 2012 (USEPA, 2012)) data, the correlation between results from multiple sample events can be high; however, the approach suggested by commenters would yield less accurate data for several reasons. EPA's assessment of sampling frequency using UCMR 3 and UCMR 4 data (see Appendix 2 in “Response to Comments on the Fifth Unregulated Contaminant Monitoring Rule (UCMR 5) Proposal,” (USEPA, 2021i), which can be found in the electronic docket listed in the ADDRESSES section of this preamble) shows that for both SW and GW systems, there are numerous cases where occurrence is notably different between sample events. Focusing first on UCMR 3 results for PWS with SW sources, the number of sample points at which PFOS was measured at or above the MRL was 108 percent greater when considering multiple sample events, versus only considering the first sample event. There were multiple occasions where the results from the first sample event were below the health-based reference concentration while subsequent results were above it. Looking at UCMR 3 results for PWSs with GW sources, PFOS was measured at or above the MRL at 26 percent more sample points in the second sample event relative to the first. Similar to the UCMR 3 results for SW systems, there were multiple occasions where the second result from a GW system exceeded the reference concentration while the first result did not.

Some commenters suggested that between-system variability is much greater for PFAS than within-system variability. While it may be less than between-system variability, within-system variability can still be important. Shifting to a single sample prevents reasonable assessments of within-system variability and limits the ability to observe between-system variability estimates. This would then drastically reduce the ability to characterize uncertainty.

Additionally, although the provisions of AWIA could include the addition of approximately 5,200 more PWSs to UCMR 5 relative to earlier cycles and thus capture more spatial variation in the resulting dataset, it is important to note that spatial variation is different than temporal or seasonal variation. Capturing more of one does not diminish the influence of the others on national occurrence data and reducing the frequency of sampling eliminates the possibility of analyzing the resulting data for temporal variation. In addition, statistical means based on two measurements have considerably less error than a single measurement per system, and provide a more robust dataset for future regulatory decisions. Having more than one sample event also greatly reduces the chance of underestimating the true proportion of occurrence of the contaminant in drinking water ( i.e., exposure).

Regarding monitoring frequency and burden, EPA notes that the agency allows large GW systems the opportunity to reduce monitoring burden by using approved representative entry points (40 CFR 141.35(c)(3)) as described in Section IV.D of this preamble. Representative monitoring plans will result in fewer samples and thus time and cost savings to the PWS. Consecutive systems with multiple connections from a particular wholesaler are also permitted to choose one entry point as representative, thus reducing burden.

D. Where are the sampling locations and what is representative monitoring?

1. This Final Rule

Consistent with past UCMR cycles, sample collection for UCMR 5 contaminants will take place at the entry point to the distribution system (EPTDS). As during past UCMRs and as described in 40 CFR 141.35(c)(3) of this preamble, this final rule will allow large ground water systems (or large surface water systems with ground water sources) that have multiple ground water EPTDSs to request approval to sample at representative monitoring locations rather than at each ground water EPTDS. GWRMPs approved under prior UCMRs may be used for UCMR 5, presuming no significant changes in the configuration of the ground water EPTDSs since the prior approval. Water systems that intend to use a previously approved plan must send EPA a copy of the approval documents received under prior UCMRs from their state (if reviewed by the state) or EPA.

Relative to the rules for prior UCMR cycles, this final rule provides greater flexibility to PWSs in submitting GWRMPs to EPA. Plans must be submitted to EPA six months prior to the PWS's scheduled sample collection, instead of by a specified date; those PWSs scheduled to collect samples in 2024 or 2025 will have significant additional time to develop and propose representative plans. PWSs, particularly those scheduled for sample collection in 2023, are encouraged to submit proposals for a new GWRMP by December 31, 2022, to allow time for review by EPA and, as appropriate, the state. EPA will work closely with the states to coordinate the review of GWRMPs in those cases where such review is part of the state's Partnership Agreement. Changes to inventory data in SDWARS that impact a PWS's representative plan before or during the UCMR sampling period must be reported within 30 days of the change. EPA will collaborate with small systems (particularly those with many ground water locations) to develop a GWRMP when warranted, recognizing that EPA pays for the analysis of samples from small systems.

2. Summary of Major Comments and EPA Responses

EPA received multiple comments regarding GWRMPs and representative sampling for wholesale systems and consecutive connections. Generally, commenters supported the continued use of GWRMPS and the use of previously approved monitoring plans. An additional supporting document, titled, “Instructions for Preparing a Ground Water Representative Monitoring Plan for the Unregulated Contaminant Monitoring Rule,” (USEPA, 2021j) has been placed in the electronic docket listed in the ADDRESSES section of this preamble.

Several commenters recommended that EPA not require monitoring by consecutive systems that purchase 100 percent of their water from wholesale systems that are already subject to UCMR 5 monitoring. They requested that EPA instead require wholesalers to identify the PWSIDs of consecutive systems receiving water from the wholesaler, and that EPA rely on wholesaler monitoring in lieu of monitoring by the consecutive systems. EPA has decided to require monitoring by consecutive systems to conduct monitoring in accordance with UCMR 5. Previous UCMR data demonstrate that wholesalers and purchasers can have different analytical results (see Appendix 3 in “Response to Comments on the Fifth Unregulated Contaminant Monitoring Rule (UCMR 5) Proposal,” (USEPA, 2021i), which can be found in the electronic docket listed in the ADDRESSES section of this preamble). For example, pairing the results from wholesaler to consecutive connections for 190 manganese results from UCMR 4 (81 FR 92666, December 20, 2016 (USEPA, 2016)), one-third of the results are higher at the wholesaler and one-third of the results are higher at the consecutive connection, with one-third of all results being comparable [±0.4 μg/L]. The agency therefore elected to maintain the proposed approach in which all eligible consecutive systems must monitor, irrespective of monitoring being conducted by the wholesale system from which they purchase drinking water.

E. How long do laboratories and PWSs have to report data?

1. This Final Rule

EPA is maintaining the revised reporting timeframes for laboratories and PWSs as proposed. For UCMR 5, laboratories have 90 days (versus 120 days in prior UCMR cycles) from the sample collection date to post and approve analytical results in SDWARS for PWS review. Large PWSs have 30 days (versus 60 days in prior UCMR cycles) to review and approve the analytical results posted to SDWARS. As with the UCMR 4 requirements, data will be considered approved and available for state and EPA review if the PWS takes no action within their allotted review period.

In the proposed rule for UCMR 5, EPA noted that multiple states have expressed an interest in earlier access to UCMR data (see Docket ID No. EPA-HQ-OW-2020-0530). EPA believes that the shorter timeframes for posting and approving data are feasible and reasonable based on our experience with UCMR reporting to date.

2. Summary of Major Comments and EPA Responses

Commenters generally agreed with the revised timeframes for laboratories to post and approve analytical results in SDWARS. The 90-day laboratory timeframe makes UCMR results more readily available to interested stakeholders and states. Some commenters supported the timely reporting of data by laboratories to ensure that PWSs have adequate time to reconcile QC issues, especially those that may require a PWS to resample. Some expressed concerns that the revised timeframe could be challenging for laboratories. Some suggested that the shorter timeframe be conditioned on consistent functionality and availability of SDWARS.

Commenters generally agreed with the changes in the timeframes for large PWSs to review and approve analytical results posted to SDWARS, though several requested that EPA maintain the 60-day review period.

EPA has observed that many laboratories are routinely posting data to SDWARS within 90 days of sample collection and that many large PWSs are approving and submitting data within 30 days of their laboratory posting the data. Judging by reporting for 2020 monitoring under UCMR 4 (81 FR 92666, December 20, 2016 (USEPA, 2016)), more than 75 percent of laboratories posted and approved data within 90 days, and more than 85 percent of large PWSs who chose to act on their data, did so within 30 days of the laboratory posting it. During UCMR 3 and UCMR 4, less than half of large PWSs chose to actively review and approve their data, as opposed to letting the results default to “approved” status after the review period. The many large PWSs that have routinely chosen to not review and approve their data will not be impacted by the revised timeframe for PWS data review for UCMR 5. See also Appendix 5 in “Response to Comments on the Fifth Unregulated Contaminant Monitoring Rule (UCMR 5) Proposal,” (USEPA, 2021i), which can be found in the electronic docket listed in the ADDRESSES section of this preamble.

EPA does not anticipate functionality or availability issues with SDWARS during UCMR 5 but is prepared to make case-by-case exceptions for reporting timeframes should significant issues occur with the reporting system.

F. What are the reporting requirements for UCMR 5?

1. This Final Rule

Today's final rule removes 1 of the proposed data elements (“Direct Potable Reuse Water Information”) and maintains the 27 others described in the proposed rule. EPA has updated some of the data-element definitions for clarity and consistency in the reporting requirements. Please see Table 1 of 40 CFR 141.35(e) of this preamble for the complete list of data elements, definitions and drop-down options that will be provided in the data reporting system.

2. Summary of Major Comments and EPA Responses

a. Data Elements

EPA received multiple comments on the proposed contaminant-specific data elements, with some commenters questioning the quality, reliability, and utility of some of the data that would be provided to the agency per the proposed data element requirements. Several commenters requested that EPA include rationale explaining the intended use of such data. EPA has updated the data elements for clarity ( e.g., clarifying treatment types, and abbreviations for them; adding the treatment option “NMT = not modified after testing”) and has provided additional rationale (including describing how the information could impact regulatory decision making and risk-management strategies) in the “Response to Comments on the Fifth Unregulated Contaminant Monitoring Rule (UCMR 5) Proposal,” (USEPA, 2021i), available in the UCMR 5 public docket (see the ADDRESSES section of this preamble). EPA acknowledges the data collected will have some limitations but believes that the collection of the information is still valuable. In addition, EPA notes the modest burden associated with the collection.

b. Reporting State Data

EPA received several comments suggesting that PWSs be permitted to submit occurrence data collected under state-based monitoring, in lieu of conducting UCMR 5 monitoring, to reduce the monitoring burden. In those cases where the monitoring required by a state is aligned with the requirements of UCMR 5, PWSs may be able to conduct PFAS monitoring that meets the needs of their state and UCMR 5, with the understanding that UCMR 5 requirements must be met. This includes the requirement that PFAS samples be analyzed by a UCMR 5-approved laboratory using EPA Method 533 and Method 537.1. EPA offers flexibility for PWSs to reschedule their UCMR 5 monitoring, and PWSs may do so to coordinate it with their state-required monitoring. PWSs wishing to conduct “dual purpose” monitoring ( i.e., concurrently meeting the state and UCMR 5 needs) may contact their state or EPA, as appropriate, if there are questions about whether the state and UCMR 5 requirements are being met.

G. What are the UCMR 5 Minimum Reporting Levels (MRLs) and how were they determined?

1. This Final Rule

EPA is maintaining the proposed minimum reporting levels for the UCMR 5 contaminants. EPA establishes MRLs to ensure consistency in the quality of the information reported to the agency. As defined in 40 CFR 141.40(a)(5)(iii) of this preamble, the MRL is the minimum quantitation level that, with 95 percent confidence, can be achieved by capable analysts at 75 percent or more of the laboratories using a specified analytical method. More detailed explanation of the MRL calculation is in the “Technical Basis for the Lowest Concentration Minimum Reporting Level (LCMRL) Calculator” (USEPA, 2010), available at ( https://www.epa.gov/dwanalyticalmethods/lowest-concentration-minimum-reporting-level-lcmrl-calculator ).

EPA requires each laboratory interested in supporting UCMR analyses to demonstrate that they can reliably make quality measurements at or below the established MRL to ensure that high quality results are being reported by participating laboratories. EPA established the proposed MRLs in 40 CFR 141.40(a)(3), Table 1 of this preamble, for each analyte/method by obtaining data from at least three laboratories that performed “lowest concentration minimum reporting level” (LCMRL) studies. The results from these laboratory LCMRL studies can be found in the “UCMR 5 Laboratory Approval Manual” (USEPA, 2021f), available in the electronic docket (see the ADDRESSES section of this preamble).

The multiple laboratory LCMRLs were then processed through a statistical routine to derive an MRL that, with 95 percent confidence, is predicted to be attainable by 75 percent of laboratories using the prescribed method. EPA considers these to be the lowest reporting levels that can practically and consistently be achieved on a national basis (recognizing that individual laboratories may be able to measure at lower levels).

2. Summary of Major Comments and EPA Responses

Some commenters recommended that EPA establish lower MRLs for the 29 PFAS in UCMR 5. MRLs used for the UCMR program are based on calculations that account for the ability of laboratories to report accurate and precise measurements with a specific statistical confidence. Based on the results from multiple laboratories that participated in MRL-setting studies, EPA concluded that the proposed MRLs represent the lowest feasible levels for a national MRL measure. Sensitivity ( i.e., quantitation limit) may improve with time, experience, and instrumentation advances.

H. What are the requirements for laboratory analysis of field reagent blank samples?

1. This Final Rule

EPA initially proposed that laboratories analyze all field reagent blank (FRB) samples, along with the corresponding field samples, to reduce the possibility of invalidating a positive field sample result ( i.e., a field sample result at or above the MRL) because of FRB hold times being exceeded.

2. Summary of Major Comments and EPA Responses

EPA did not receive any comments expressing concerns with the laboratory approval process; however, the agency did receive a comment on the FRB sample analysis criteria, suggesting that the agency not require analysis of every FRB sample. EPA Method 537.1 and Method 533, used for PFAS analysis, require collection of a corresponding FRB sample from each unique sampling location for each sampling event. The methods require that the FRB be analyzed if there is a positive result for a PFAS analyte in a corresponding field sample. Based on further consideration, EPA is now providing laboratories with discretion as to whether they analyze every FRB sample proactively or only those associated with positive field sample results. This is with the understanding that laboratories must analyze field samples promptly enough such that the corresponding FRB analyses, if needed, may be completed within the prescribed hold time. Compliance with the method hold-time requirements, and other provisions of the methods, is a condition of maintaining laboratory approval. EPA is studying the possibility of extending the FRB hold times for EPA Method 537.1 and Method 533, and will communicate the results of the studies with the approved laboratories.

I. How will EPA support risk communication for UCMR 5 results?

EPA received comments requesting that the agency develop and provide risk communication materials to support interpretation and characterization of UCMR 5 results. EPA intends to publish a “reference concentration” summary document with available EPA health values; provide a template for PWSs to consider using in communicating with their customers about the detection of PFAS in drinking water; and provide other supporting material as risk-related information becomes available.

V. Statutory and Executive Order Reviews

Additional information about these statutes and Executive Orders can be found at http://www2.epa.gov/laws-regulations/laws-and-executive-orders.

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

This action is a significant regulatory action that was submitted to the Office of Management and Budget (OMB) for review. Any changes made in response to OMB recommendations have been documented in the docket. A full analysis of potential costs associated with this action, the “Information Collection Request for the Final Unregulated Contaminant Monitoring Rule (UCMR 5),” (USEPA, 2021b) ICR Number 2040-0304, is also available in the docket (Docket ID No. EPA-HQ-OW-2020-0530). A summary of the ICR can be found in Section I.C of this preamble.

B. Paperwork Reduction Act (PRA)

The information collection activities in this final rule have been submitted for approval to the Office of Management and Budget (OMB) under the PRA. The Information Collection Request (ICR) document (USEPA, 2021b) that EPA prepared has been assigned EPA ICR number ICR 2683.02. You can find a copy of the ICR in the docket for this final rule, and it is briefly summarized here. The information collection requirements are not enforceable until OMB approves them.

The information that EPA will collect under this final rule fulfills the statutory requirements of Section1445(a)(2) of SDWA, as amended in 1996, 2018, and 2019. The data will describe the source of the water, location, and test results for samples taken from public water systems (PWSs) as described in 40 CFR 141.35(e). The information collected will support EPA's decisions as to whether or not to regulate particular contaminants under SDWA. Reporting is mandatory. The data are not subject to confidentiality protection.

The 5-year UCMR 5 period spans 2022-2026. UCMR 5 sample collection begins in 2023 and continues through 2025. Since ICRs cannot be approved by OMB for a period longer than three years pursuant to 5 CFR 1320.10, the primary analysis in the ICR only covers the first three years of the UCMR 5 period ( i.e., 2022-2024). Prior to expiration of the initial UCMR 5 ICR, EPA will seek to extend the ICR and thus receive approval to collect information under the PRA in the remaining two years of the UCMR 5 period (2025-2026).

EPA received several comments regarding cost and burden of the proposed rule. Those comments recommended that EPA provide more accurate cost estimates. EPA's response is detailed more fully in the “Response to Comments on the Fifth Unregulated Contaminant Monitoring Rule (UCMR 5) Proposal,” (USEPA, 2021i), which can be found in the electronic docket listed in the ADDRESSES section of this preamble.

EPA has reviewed and, as appropriate, revised the cost and burden figures for UCMR 5; this includes using updated unit cost estimates for sample analysis. The annual burden and cost estimates described in this section are based on the implementation assumptions described in Section III of this preamble, among them the inclusion of all systems serving 3,300 to 10,000 people and a representative sample of smaller systems. As such, those estimates represent an upper bound. If EPA does not receive the necessary appropriations in one or more of the collections years—and thus collects data from fewer small systems—the actual costs would be lower than those estimated here. In general, burden hours were calculated by:

1. Determining the activities that PWSs and states would complete to comply with UCMR activity;

2. Estimating the number of hours per activity;

3. Estimating the number of respondents per activity; and

4. Multiplying the hours per activity by the number of respondents for that activity.

Respondents/affected entities: The respondents/affected entities are small PWSs (those serving 25 to 10,000 people); large PWSs (those serving 10,001 to 100,000 people); very large PWSs (those serving more than 100,000 people); and states.

Respondent's obligation to respond: Mandatory (40 CFR 141.35).

Estimated number of respondents: Respondents to UCMR 5 include 5,947 small PWSs, 4,364 large PWSs, and the 56 primacy agencies (50 States, one Tribal nation, and five Territories) for a total of 10,367 respondents.

Frequency of response: The frequency of response varies across respondents and years. Across the initial 3-year ICR period for UCMR 5, small PWSs will sample an average of 2.8 times per PWS ( i.e., number of responses per PWS); large PWSs will sample and report an average of 3.2 times per PWS; and very large PWSs will sample and report an average of 3.7 times per PWS.

Total estimated burden: 48,469 hours (per year). Burden is defined at 5 CFR 1320.3(b).

Total estimated cost: $9,404,007 annualized capital or operation & maintenance costs.

An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number. The OMB control numbers for the EPA's regulations in 40 CFR are listed in 40 CFR part 9. When OMB approves this ICR, the agency will announce that approval in the Federal Register and publish a technical amendment to 40 CFR part 9 to display the OMB control number for the approved information collection activities contained in this final rule.

C. Regulatory Flexibility Act (RFA)

For purposes of assessing the impacts of this final rule on small entities, EPA considered small entities to be PWSs serving 25 to 10,000 people. As required by the RFA, EPA proposed using this alternative definition in the Federal Register (63 FR 7606, February 13, 1998 (USEPA, 1998a)), sought public comment, consulted with the Small Business Administration (SBA) Office of Advocacy, and finalized the alternative definition in the Consumer Confidence Reports rulemaking (63 FR 44512, August 19, 1998 (USEPA, 1998b)). As stated in that document, the alternative definition applies to this regulation.

Exhibit 6—Number of Publicly- and Privately-Owned Small Systems Subject to UCMR 5 ¹
¹ In the absence of appropriations to support monitoring at all PWSs serving 3,300 to 10,000 people, EPA could instead include as few as 400 PWSs serving 25 to 3,299 people and 400 PWSs serving 3,300 to 10,000 people (for a representative sample of 800 PWSs serving 25 to 10,000 people).
² PWS counts were adjusted to display as whole numbers in each size category.
System size (number of people served)	Publicly-owned	Privately-owned	Total ²
Ground Water
500 and under	42	126	168
501 to 3,300	320	121	441
3,301 to 10,000	2,334	541	2,875
Subtotal Ground Water	2,696	788	3,484
Surface Water (and Ground Water Under the Direct Influence of Surface Water)
500 and under	9	11	20
501 to 3,300	126	45	171
3,301 to 10,000	1,762	510	2,272
Subtotal Surface Water	1,897	566	2,463
Total of Small Water Systems	4,593	1,354	5,947

The basis for the UCMR 5 RFA certification is as follows: For the 5,947 small water systems that EPA anticipates will be affected, per the planned monitoring, the average annual cost for complying with this final rule represents an average of 0.02 percent of system revenues. The average yearly cost to small systems to comply with UCMR 5 over the 5-year period of 2022-2026, is approximately $0.3 million. EPA anticipates that approximately one third of the 5,947 small PWSs will collect samples in each of three years (2023, 2024, and 2025).

PWS costs are attributed to the labor required for reading about UCMR 5 requirements, monitoring, reporting, and record keeping. The estimated average annual burden across the 5-year UCMR 5 implementation period of 2022-2026 is 1.3 hours at $52 per small system. By assuming all costs for laboratory analyses, shipping and quality control for small entities, EPA incurs the entirety of the non-labor costs associated with UCMR 5 small system monitoring, or 96 percent of total small system testing costs. Exhibit 7 and Exhibit 8 of this preamble present the estimated economic impacts in the form of a revenue test for publicly- and privately-owned systems.

Exhibit 7—UCMR 5 Relative Cost Analysis for Small Publicly-Owned Systems
System size (number of people served)	Annual number of systems impacted ²	Average annual hours per system	Average annual cost per system	SBREFA criteria- revenue test ³ (%)
¹ In the absence of appropriations to support monitoring at all PWSs serving 3,300 to 10,000 people, EPA could instead include as few as 400 PWSs serving 25 to 3,299 people and 400 PWSs serving 3,300 to 10,000 people (for a representative sample of 800 PWSs serving 25 to 10,000 people).
² PWS counts were adjusted to display as whole numbers in each size category. Includes the publicly-owned portion of small systems subject to UCMR 5.
³ Costs are presented as a percentage of median annual revenue for each size category.
Ground Water Systems
500 and under	8	1.0	$40.65	0.09
501 to 3,300	64	1.1	43.37	0.02
3,301 to 10,000	467	1.3	49.92	0.01
Surface Water (and Ground Water Under the Direct Influence of Surface Water) Systems
500 and under	2	1.4	54.39	0.07
501 to 3,300	25	1.4	56.19	0.02
3,301 to 10,000	353	1.5	57.39	0.004

Exhibit 8—UCMR 5 Relative Cost Analysis for Small Privately-Owned Systems
System size (number of people served)	Annual number of systems impacted ²	Average annual hours per system	Average annual cost per system	SBREFA criteria- revenue test ³ (%)
¹ In the absence of appropriations to support monitoring at all PWSs serving 3,300 to 10,000 people, EPA could instead include as few as 400 PWSs serving 25 to 3,299 people and 400 PWSs serving 3,300 to 10,000 people (for a representative sample of 800 PWSs serving 25 to 10,000 people).
² PWS counts were adjusted to display as whole numbers in each size category. Includes the privately-owned portion of small systems subject to UCMR 5.
³ Costs are presented as a percentage of median annual revenue for each size category.
Ground Water Systems
500 and under	25	1.0	$40.65	0.48
501 to 3,300	24	1.1	$43.37	0.03
3,301 to 10,000	108	1.3	$49.92	0.004
Surface Water (and Ground Water Under the Direct Influence of Surface Water) Systems
500 and under	2	1.4	$54.39	0.11
501 to 3,300	9	1.4	$56.19	0.02
3,301 to 10,000	102	1.5	$57.39	0.004

Up to 9.4 percent of all small systems ( i.e., up to 5,947 small PWSs serving 25 to 10,000 people) will participate in UCMR 5 if EPA receives the necessary appropriations to support its plan. EPA has determined that participating small systems will experience an average impact of 0.02 percent of revenues. This accounts for small PWSs familiarizing themselves with the regulatory requirements; reading sampling instructions; traveling to the sampling location; collecting and shipping the samples; and maintaining their records. The 5,947 small PWSs are comprised of all 5,147 systems serving between 3,300 and 10,000 people, and the representative group of 800 systems serving between 25 and 3,299 people; the remainder of small systems will not participate in UCMR 5 monitoring and will not be impacted.

I certify that this action will not have a significant economic impact on a substantial number of small entities under the RFA. The small entities subject to the requirements of this action along with a description of the very minor impacts are previously addressed in this section. Although this final rule will not have a significant economic impact on a substantial number of small entities, EPA has attempted to reduce impacts by assuming all costs for analyses of the samples, and for shipping the samples from small systems to laboratories contracted by EPA to analyze the UCMR 5 samples (the cost of shipping is included in the cost of each analytical method). EPA has historically set aside $2.0 million each year from the Drinking Water State Revolving Fund (DWSRF) with its authority to use DWSRF monies for the purposes of implementing this provision of SDWA. EPA anticipates drawing on these and additional funds, if available, to implement the plan and carry out the expanded UCMR monitoring approach outlined in AWIA. We have therefore concluded that this action will have no significant impact on any directly regulated small entities.

D. Unfunded Mandates Reform Act (UMRA)

This action does not contain an unfunded mandate of $100 million or more as described in UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect small governments. The action implements mandate(s) specifically and explicitly set forth in SDWA Section 1445(a)(2), Monitoring Program for Unregulated Contaminants.

E. Executive Order 13132: Federalism

This action does not have federalism implications. It will not have substantial direct effects on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government.

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

This action has Tribal implications. However, it will neither impose substantial direct compliance costs on federally recognized Tribal governments, nor preempt Tribal law. As described previously in this document, this final rule requires monitoring by all large PWSs. Information in the SDWIS/Fed water system inventory indicates there are approximately 27 large Tribal PWSs (serving 10,001 to 40,000 people). EPA estimates the average annual cost to each of these large PWSs, over the 5-year rule period, to be $1,783. This cost is based on a labor component (associated with the collection of samples), and a non-labor component (associated with shipping and laboratory fees). As planned, UCMR 5 is expected to also require monitoring by all small PWSs serving 3,300 to 10,000 people and a nationally representative sample of small PWSs serving 25 to 3,299 people. Information in the SDWIS/Fed water system inventory indicates there are approximately 75 small Tribal PWSs (serving 3,300 to 10,000 people). EPA estimates that less than 2 percent of small Tribal systems serving 25 to 3,299 people will be selected as part of the nationally representative sample. EPA estimates the average annual cost to small Tribal systems over the 5-year rule period to be $52. Such cost is based on the labor associated with collecting a sample and preparing it for shipping. All other small-PWS expenses (associated with shipping and laboratory fees) are paid by EPA.

EPA consulted with Tribal officials under the EPA Policy on Consultation and Coordination with Indian Tribes early in the process of developing this regulation to permit them to have meaningful and timely input into its development. A summary of that consultation, titled, “Summary of the Tribal Coordination and Consultation Process for the Fifth Unregulated Contaminant Monitoring Rule (UCMR 5) Proposal,” is provided in the electronic docket listed in the ADDRESSES section of this preamble.

As required by section 7(a), the EPA's Tribal Consultation Official has certified that the requirements of the executive order have been met in a meaningful and timely manner. A copy of the certification is included in the docket for this action.

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

EPA interprets Executive Order 13045 as applying only to those regulatory actions that concern environmental health or safety risks that EPA has reason to believe may disproportionately affect children, per the definition of “covered regulatory action” in section 2-202 of the Executive Order. This action is not subject to Executive Order 13045 because it does not concern such an environmental health risk or safety risk.

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

This action is not a “significant energy action” because it is not likely to have a significant adverse effect on the supply, distribution or use of energy and has not otherwise been designated by the Administrator of the Office of Information and Regulatory Affairs as a significant energy action. This is a national drinking water occurrence study that was submitted to OMB for review.

I. National Technology Transfer and Advancement Act (NTTAA)

This action involves technical standards. EPA has identified options that involve using analytical methods developed by the agency and three major voluntary consensus method organizations to support UCMR 5 monitoring. The voluntary consensus method organizations are Standard Methods for the Examination of Water and Wastewater, and ASTM International. EPA identified acceptable consensus method organization standards for the analysis of lithium. A summary of each method along with how the method specifically applies to UCMR 5 can be found in Section III.I of this preamble.

All of these standards are reasonably available for public use. EPA methods are free for download on the agency's website. The methods in the Standard Methods for the Examination of Water and Wastewater 23rd edition are consensus standards, available for purchase from the publisher, and are commonly used by the drinking water laboratory community. The methods in the Standard Methods Online are consensus standards, available for purchase from the publisher's website, and are commonly used by the drinking water laboratory community. The methods from ASTM International are consensus standards, are available for purchase from the publisher's website, and are commonly used by the drinking water laboratory community.

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

EPA believes that this action is not subject to Executive Order 12898 (59 FR 7629, February 16, 1994) because it does not establish an environmental health or safety standard. Background information regarding EPA's consideration of Executive Order 12898 in the development of this final rule is provided in Section III.F of this preamble, and an additional supporting document, titled, “Summary of Environmental Justice Considerations for the Fifth Unregulated Contaminant Monitoring Rule (UCMR 5) Proposal,” has been placed in the electronic docket listed in the ADDRESSES section of this preamble.

K. Congressional Review Act (CRA)

This action is subject to the CRA, and EPA will submit a rule report to each House of the Congress and to the Comptroller General of the United States. This action is not a “major rule” as defined by 5 U.S.C. 804(2).

VI. References

(i) ASDWA. 2013. Insufficient Resources for State Drinking Water Programs Threaten Public Health: An Analysis of State Drinking Water Programs' Resources and Needs. December 2013. Available at https://www.asdwa.org/asdwa-reports/.

(ii) ASTM. 2020. ASTM D1976-20— Standard Test Method for Elements in Water by Inductively-Coupled Plasma Atomic Emission Spectroscopy. ASTM, 100 Barr Harbor Drive, West Conshohocken, PA, 19428. Approved May 1, 2020. Available for purchase at https://www.astm.org/Standards/D1976.htm.

(iii) California DHS. 2002. California Department of Health Services. Determination of 1,2,3-Trichloropropane in Drinking Water by Purge and Trap Gas Chromatography/Mass Spectrometry. Division of Drinking Water and Environmental Management, Sanitation and Radiation Laboratories Branch, Berkeley, CA. Available at https://www.waterboards.ca.gov/drinking_water/certlic/drinkingwater/documents/123-tcp/tcp_by_pt_gcms.pdf.

(iv) Settlement Agreement, Waterkeeper Alliance, Inc. v. U.S. EPA, No. 1:19-cv-00899-LJL (S.D.N.Y. Jun. 1, 2020).

(v) SM. 2017. 3120B—Metals by Plasma Emission Spectroscopy (2017): Inductively Coupled Plasma (ICP) Method. Standard Methods for the Examination of Water and Wastewater, 23rd edition. American Public Health Association, 800 I Street NW, Washington, DC 20001-3710.

(vi) SM Online. 1999. 3120B-99—Metals by Plasma Emission Spectroscopy: Inductively Coupled Plasma (ICP) Method (Editorial Revisions, 2020). Standard Methods Online. Available for purchase at http://www.standardmethods.org.

(vii) USEPA. 1989. National Primary Drinking Water Regulations; Filtration, Disinfection; Turbidity, Giardia lamblia, Viruses, Legionella, and Heterotrophic Bacteria; Final Rule. Federal Register . Vol. 54, No. 124, p. 27486, June 29, 1989.

(viii) USEPA. 1994. EPA Method 200.7—Determination of Metals and Trace Elements in Water and Wastes by Inductively Coupled Plasma-Atomic Emission Spectrometry, Revision 4.4. Office of Research and Development, Cincinnati, OH. Available at https://www.epa.gov/esam/method-2007-determination-metals-and-trace-elements-water-and-wastes-inductively-coupled-plasma.

(ix) USEPA. 1998a. National Primary Drinking Water Regulations: Consumer Confidence Reports; Proposed Rule. Federal Register . Vol. 63, No. 30, p. 7606, February 13, 1998.

(x) USEPA. 1998b. National Primary Drinking Water Regulation: Consumer Confidence Reports; Final Rule. Federal Register . Vol. 63, No. 160, p. 44512, August 19, 1998.

(xi) USEPA. 2010. Technical Basis for the Lowest Concentration Minimum Reporting Level (LCMRL) Calculator. EPA 815-R-11-001. Office of Water. December 2010. Available at https://www.epa.gov/dwanalyticalmethods.

(xii) USEPA. 2011. Exposure Factors Handbook 2011 Edition (Final Report). U.S. EPA, Washington, DC, EPA/600/R-09/052F. Office of Research and Development, Washington, DC. September 2011. Available at https://www.epa.gov/expobox/about-exposure-factors-handbook.

(xiii) USEPA. 2012. Revisions to the Unregulated Contaminant Monitoring Regulation (UCMR 3) for Public Water Systems; Final Rule. Federal Register . Vol. 77, No. 85, p. 26072, May 2, 2012.

(xiv) USEPA. 2016. Revisions to the Unregulated Contaminant Monitoring Rule (UCMR 4) for Public Water Systems and Announcement of Public Meeting. Federal Register . Vol. 81, No. 244, p. 92666, December 20, 2016.

(xv) USEPA. 2017. National Primary Drinking Water Regulations; Announcement of the Results of EPA's Review of Existing Drinking Water Standards and Request for Public Comment and/or Information on Related Issues. Federal Register . Vol. 82, No. 7, p. 3518, January 11, 2017.

(xvi) USEPA. 2018. Method Development for Unregulated Contaminants in Drinking Water: Public Meeting and Webinar. EPA 815-A-18-001. Office of Water. June 2018. Available at https://www.epa.gov/dwanalyticalmethods.

(xvii) USEPA. 2019a. Development of the Proposed Unregulated Contaminant Monitoring Rule for the Fifth Monitoring Cycle (UCMR 5). Presentation Slides. EPA 815-A-19-001. Office of Water. Available at https://www.epa.gov/dwucmr/unregulated-contaminant-monitoring-rule-ucmr-meetings-and-materials.

(xviii) USEPA. 2019b. EPA Method 533—Determination of Per- and Polyfluoroalkyl Substances in Drinking Water by Isotope Dilution Anion Exchange Solid Phase Extraction and Liquid Chromatography/Tandem Mass Spectrometry. EPA 815-B-19-020. Office of Water, Cincinnati, OH. November 2019. Available at https://www.epa.gov/dwanalyticalmethods.

(xix) USEPA. 2019c. Appendix C: 1,2,3-Trichloropropane in Regulatory Determination 4 Support Document for Selected Contaminants from the Fourth Drinking Water Contaminant Candidate List (CCL 4). EPA 815-R-19-006. Docket ID EPA-HQ-OW-2019-0583. Available at https://www.regulations.gov.

(xx) USEPA. 2020. EPA Method 537.1—Determination of Selected Per- and Polyfluorinated Alkyl Substances in Drinking Water by Solid Phase Extraction and Liquid Chromatography/Tandem Mass Spectrometry (LC/MS/MS). Version 2.0. EPA/600/R-20/006. Office of Research and Development, Cincinnati, OH. March 2020. Available at https://www.epa.gov/dwanalyticalmethods.

(xxii) USEPA. 2021a. Selection of Nationally Representative Public Water Systems for the Unregulated Contaminant Monitoring Rule: 2021 Update. EPA 815-B-21-012. Office of Water. December 2021.

(xxiii) USEPA. 2021b. Information Collection Request for the Final Unregulated Contaminant Monitoring Rule (UCMR 5). EPA 815-B-21-008. Office of Water. December 2021.

(xxiv) USEPA. 2021c. Revisions to the Unregulated Contaminant Monitoring Rule for the Fifth Monitoring Cycle (UCMR 5): Public Meeting and Webinar. Presentation Slides. EPA 815-A-21-001. Office of Water. April 2021. Available at https://www.epa.gov/dwucmr/unregulated-contaminant-monitoring-rule-ucmr-meetings-and-materials.

(xxv) USEPA. 2021d. Drinking Water Contaminant Candidate List 5—Draft. Federal Register . Vol. 86, No. 135 p. 37948, July 19, 2021.

(xxvi) USEPA. 2021e. Information Compendium for Contaminants for the Final Unregulated Contaminant Monitoring Rule (UCMR 5). EPA 815-B-21-009. Office of Water. December 2021.

(xxvii) USEPA. 2021f. UCMR 5 Laboratory Approval Manual. EPA 815-B-21-010. Office of Water. December 2021.

(xxviii) USEPA. 2021g. Revisions to the Unregulated Contaminant Monitoring Rule for Public Water Systems and Announcement of Public Meeting; Proposed Rule and Notice of Public Meeting. Federal Register . Vol. 86, No. 46, p. 13846, March 11, 2021.

(xxix) USEPA. 2021h. Revisions to 40 CFR 141.35 and 141.40. EPA 815-B-21-011. Office of Water. December 2021. Available in EPA's public docket (under Docket ID No. EPA-HQ-OW-2020-0530) at https://www.regulations.gov.

(xxx) USEPA. 2021i. Response to Comments on the Fifth Unregulated Contaminant Monitoring Rule (UCMR 5) Proposal. EPA 815-R-21-008. Office of Water. December 2021.

(xxi) USEPA. 2021j. Instructions for Preparing a Ground Water Representative Monitoring Plan for the Unregulated Contaminant Monitoring Rule. EPA 815-B-21-013. Office of Water. December 2021.

List of Subjects in 40 CFR Part 141

Environmental protection, Chemicals, Incorporation by reference, Indian—lands, Intergovernmental relations, Reporting and recordkeeping requirements, Water supply.

Michael S. Regan,

Administrator.

For the reasons set forth in the preamble, EPA amends 40 CFR part 141 as follows:

PART 141—NATIONAL PRIMARY DRINKING WATER REGULATIONS

1. The authority citation for part 141 continues to read as follows:

Authority:

42 U.S.C. 300f, 300g-1, 300g-2, 300g-3, 300g-4, 300g-5, 300g-6, 300j-4, 300j-9, and 300j-11.

Subpart D—Reporting and Recordkeeping

2. Amend §141.35 as follows:

a. In paragraph (a), revise the fourth sentence;

b. In paragraph (c)(1), remove the text “December 31, 2017” and add, in its place the text “December 31, 2022”;

c. Revise paragraphs (c)(2), (c)(3)(i) through (iii), (c)(4), (c)(5)(i), and (c)(6)(ii);

d. In paragraph (d)(2), revise the first, second, and third sentences; and

f. Revise paragraph (e).

The revisions read as follows:

§141.35 Reporting for unregulated contaminant monitoring results.

(a) * * * For the purposes of this section, PWS “population served” is the retail population served directly by the PWS as reported to the Federal Safe Drinking Water Information System (SDWIS/Fed). * * *

* * * * *

(2) Sampling location inventory information. You must provide your inventory information by December 31, 2022, using EPA's electronic data reporting system, as specified in paragraph (b)(1) of this section. You must submit, verify, or update data elements 1-9 (as defined in Table 1 of paragraph (e) of this section) for each sampling location, or for each approved representative sampling location (as specified in paragraph (c)(3) of this section) regarding representative sampling locations. If this information changes, you must report updates, including new sources, and sampling locations that are put in use before or during the UCMR sampling period, to EPA's electronic data reporting system within 30 days of the change.

(3) * * *

(i) Qualifications. Large PWSs that have EPA- or State-approved representative EPTDS sampling locations from a previous UCMR cycle, or as provided for under 40 CFR 141.23(a)(1), 40 CFR 141.24(f)(1), or 40 CFR 141.24(h)(1), may submit a copy of documentation from your State or EPA that approves your representative sampling plan. PWSs that do not have an approved representative EPTDS sampling plan may submit a proposal to sample at representative EPTDS(s) rather than at each individual EPTDS if: You use ground water as a source; all of your well sources have either the same treatment or no treatment; and you have multiple EPTDSs from the same source ( i.e., same aquifer). You must submit a copy of the existing or proposed representative EPTDS sampling plan, as appropriate, at least six months prior to your scheduled sample collection, as specified in paragraph (b)(1) of this section. If changes to your inventory that impact your representative plan occur before or during the UCMR sampling period, you must report updates within 30 days of the change.

(ii) Demonstration. If you are submitting a proposal to sample at representative EPTDS(s) rather than at each individual EPTDS, you must demonstrate that any EPTDS that you propose as representative of multiple wells is associated with a well that draws from the same aquifer as the wells it will represent. The proposed well must be representative of the highest annual volume and most consistently active wells in the representative array. If that representative well is not in use at the scheduled sampling time, you must select and sample an alternative representative well. You must submit the information defined in Table 1, paragraph (e) of this section for each proposed representative sampling location. You must also include documentation to support your proposal that the specified wells are representative of other wells. This documentation can include system-maintained well logs or construction drawings indicating that the representative well(s) is/are at a representative depth, and details of well casings and grouting; data demonstrating relative homogeneity of water quality constituents ( e.g., pH, dissolved oxygen, conductivity, iron, manganese) in samples drawn from each well; and data showing that your wells are located in a limited geographic area ( e.g., all wells within a 0.5 mile radius) and/or, if available, the hydrogeologic data indicating the ground water travel time between the representative well and each of the individual wells it represents ( e.g., all wells within a five-year time of travel delineation). Your proposal must be sent in writing to EPA, as specified in paragraph (b)(1) of this section.

(iii) Approval. EPA or the State (as specified in the Partnership Agreement reached between the State and EPA) will review your proposal and coordinate any necessary changes with you. Your plan will not be final until you receive written approval from EPA, identifying the final list of EPTDSs where you will be required to monitor.

(4) Contacting EPA if your PWS has not been notified of requirements. If you believe you are subject to UCMR requirements, as defined in 40 CFR 141.40(a)(1) and (a)(2)(i), and you have not been contacted by either EPA or your State by April 26, 2022, you must send a letter to EPA, as specified in paragraph (b)(1) of this section. The letter must be from your PWS Official and must include an explanation as to why the UCMR requirements are applicable to your system along with the appropriate contact information. A copy of the letter must also be submitted to the State as directed by the State. EPA will make an applicability determination based on your letter, and in consultation with the State when necessary and will notify you regarding your applicability status and required sampling schedule. However, if your PWS meets the applicability criteria specified in 40 CFR 141.40(a)(2)(i), you are subject to the UCMR monitoring and reporting requirements, regardless of whether you have been contacted by the State or EPA.

(5) * * *

(i) General rescheduling notification requirements. Large systems may independently change their monitoring schedules up to December 31, 2022, using EPA's electronic data reporting system, as specified in paragraph (b)(1) of this section. After this date has passed, if your PWS cannot sample according to your assigned sampling schedule ( e.g., because of budget constraints, or if a sampling location will be closed during the scheduled month of monitoring), you must mail or email a letter to EPA, as specified in paragraph (b)(1) of this section, prior to the scheduled sampling date. You must include an explanation of why the samples cannot be taken according to the assigned schedule, and you must provide the alternative schedule you are requesting. You must not reschedule monitoring specifically to avoid sample collection during a suspected vulnerable period. You are subject to your assigned UCMR sampling schedule or the schedule that you revised on or before December 31, 2022, unless and until you receive a letter from EPA specifying a new schedule.

* * * * *

(6) * * *

(ii) Reporting schedule. You must require your laboratory, on your behalf, to post and approve the data in EPA's electronic data reporting system, accessible at https://www.epa.gov/dwucmr, for your review within 90 days from the sample collection date (sample collection must occur as specified in 40 CFR 141.40(a)(4)). You then have 30 days from when the laboratory posts and approves your data to review, approve, and submit the data to the State and EPA via the agency's electronic data reporting system. If you do not electronically approve and submit the laboratory data to EPA within 30 days of the laboratory posting approved data, the data will be considered approved by you and available for State and EPA review.

* * * * *

(d) * * *

(2) Sampling location inventory information. You must provide your inventory information by December 31, 2022, using EPA's electronic data reporting system, as specified in paragraph (b)(1) of this section. If this information changes, you must report updates, including new sources, and sampling locations that are put in use before or during the UCMR sampling period, to EPA's electronic data reporting system within 30 days of the change, as specified in paragraph (b)(1) of this section. * * *

(e) Data elements. Table 1 defines the data elements that must be provided for UCMR monitoring.

Table 1 to Paragraph (e)—Unregulated Contaminant Monitoring Reporting Requirements
Data element	Definition
1. Public Water System Identification (PWSID) Code	The code used to identify each PWS. The code begins with the standard 2-character postal State abbreviation or Region code; the remaining 7 numbers are unique to each PWS in the State. The same identification code must be used to represent the PWS identification for all current and future UCMR monitoring.
2. Public Water System Name	Unique name, assigned once by the PWS.
3. Public Water System Facility Identification Code	An identification code established by the State or, at the State's discretion, by the PWS, following the format of a 5-digit number unique within each PWS for each applicable facility (i.e., for each source of water, treatment plant, distribution system, or any other facility associated with water treatment or delivery). The same identification code must be used to represent the facility for all current and future UCMR monitoring.
4. Public Water System Facility Name	Unique name, assigned once by the PWS, for every facility ID ( e.g., Treatment Plant).
5. Public Water System Facility Type	That code that identifies that type of facility as either: CC = Consecutive connection. SS = Sampling station. TP = Treatment plant. OT = Other.
6. Water Source Type	The type of source water that supplies a water system facility. Systems must report one of the following codes for each sampling location:
	SW = Surface water (to be reported for water facilities that are served entirely by a surface water source during the 12-month period).
	GU = Ground water under the direct influence of surface water (to be reported for water facilities that are served all or in part by ground water under the direct influence of surface water at any time during the 12-month sampling period), and are not served at all by surface water during this period.
	MX = Mixed water (to be reported for water facilities that are served by a mix of surface water, ground water, and/or ground water under the direct influence of surface water during the 12-month period).
	GW = Ground water (to be reported for water facilities that are served entirely by a ground water source during the 12-month period).
7. Sampling Point Identification Code	An identification code established by the State, or at the State's discretion, by the PWS, that uniquely identifies each sampling point. Each sampling code must be unique within each applicable facility, for each applicable sampling location (i.e ., entry point to the distribution system). The same identification code must be used to represent the sampling location for all current and future UCMR monitoring.
8. Sampling Point Name	Unique sample point name, assigned once by the PWS, for every sample point ID ( e.g., Entry Point).
9. Sampling Point Type Code	A code that identifies the location of the sampling point as: EP = Entry point to the distribution system.
10. Disinfectant Type	All of the disinfectants/oxidants that have been added prior to and at the entry point to the distribution system. Please select all that apply:
	PEMB = Permanganate.
	HPXB = Hydrogen peroxide.
	CLGA = Gaseous chlorine.
	CLOF = Offsite generated hypochlorite (stored as a liquid form).
	CLON = Onsite generated hypochlorite.
	CAGC = Chloramine (formed with gaseous chlorine).
	CAOF = Chloramine (formed with offsite hypochlorite).
	CAON = Chloramine (formed with onsite hypochlorite).
	CLDB = Chlorine dioxide.
	OZON = Ozone.
	ULVL = Ultraviolet light.
	OTHD = All other types of disinfectant/oxidant.
	NODU = No disinfectant/oxidant used.
11. Treatment Information	Treatment information associated with the sample point. Please select all that apply.
	CON = Conventional (non-softening, consisting of at least coagulation/sedimentation basins and filtration).
	SFN = Softening.
	RBF = River bank filtration.
	PSD = Pre-sedimentation.
	INF = In-line filtration.
	DFL = Direct filtration.
	SSF = Slow sand filtration.
	BIO = Biological filtration (operated with an intention of maintaining biological activity within filter).
	UTR = Unfiltered treatment for surface water source.
	GWD = Groundwater system with disinfection only.
	PAC = Application of powder activated carbon.
	GAC = Granular activated carbon adsorption (not part of filters in CON, SFN, INF, DFL, or SSF).
	AIR = Air stripping (packed towers, diffused gas contactors).
	POB = Pre-oxidation with chlorine (applied before coagulation for CON or SFN plants or before filtration for other filtration plants).
	MFL = Membrane filtration.
	IEX = Ionic exchange.
	DAF = Dissolved air floatation.
	CWL = Clear well/finished water storage without aeration.
	CWA = Clear well/finished water storage with aeration.
	ADS = Aeration in distribution system (localized treatment).
	OTH = All other types of treatment.
	NTU = No treatment used.
	DKN = Do not know.
12. Sample Collection Date	The date the sample is collected, reported as 4-digit year, 2-digit month, and 2-digit day (YYYYMMDD).
13. Sample Identification Code	An alphanumeric value up to 30 characters assigned by the laboratory to uniquely identify containers, or groups of containers, containing water samples collected at the same sampling location for the same sampling date.
14. Contaminant	The unregulated contaminant for which the sample is being analyzed.
15. Analytical Method Code	The identification code of the analytical method used.
16. Extraction Batch Identification Code	Laboratory assigned extraction batch ID. Must be unique for each extraction batch within the laboratory for each method. For CCC samples report the Analysis Batch Identification Code as the value for this field. For methods without an extraction batch, leave this field null.
17. Extraction Date	Date for the start of the extraction batch (YYYYMMDD). For methods without an extraction batch, leave this field null.
18. Analysis Batch Identification Code	Laboratory assigned analysis batch ID. Must be unique for each analysis batch within the laboratory for each method.
19. Analysis Date	Date for the start of the analysis batch (YYYYMMDD).
20. Sample Analysis Type	The type of sample collected and/or prepared, as well as the fortification level. Permitted values include: CCCL = MRL level continuing calibration check; a calibration standard containing the contaminant, the internal standard, and surrogate analyzed to verify the existing calibration for those contaminants.
	CCCM = Medium level continuing calibration check; a calibration standard containing the contaminant, the internal standard, and surrogate analyzed to verify the existing calibration for those contaminants.
	CCCH = High level continuing calibration check; a calibration standard containing the contaminant, the internal standard, and surrogate analyzed to verify the existing calibration for those contaminants.
	FS = Field sample; sample collected and submitted for analysis under this final rule.
	LFB = Laboratory fortified blank; an aliquot of reagent water fortified with known quantities of the contaminants and all preservation compounds.
	LRB = Laboratory reagent blank; an aliquot of reagent water treated exactly as a field sample, including the addition of preservatives, internal standards, and surrogates to determine if interferences are present in the laboratory, reagents, or other equipment.
	LFSM = Laboratory fortified sample matrix; a UCMR field sample with a known amount of the contaminant of interest and all preservation compounds added.
	LFSMD = Laboratory fortified sample matrix duplicate; duplicate of the laboratory fortified sample matrix.
	QCS = Quality control sample; a sample prepared with a source external to the one used for initial calibration and CCC. The QCS is used to check calibration standard integrity.
	FRB = Field reagent blank; an aliquot of reagent water treated as a sample including exposure to sampling conditions to determine if interferences or contamination are present from sample collection through analysis.
21. Analytical Result—Sign	A value indicating whether the sample analysis result was: (<) “less than” means the contaminant was not detected, or was detected at a level below the Minimum Reporting Level. (=) “equal to” means the contaminant was detected at the level reported in “Analytical Result— Measured Value.”
22. Analytical Result—Measured Value	The actual numeric value of the analytical results for: Field samples; laboratory fortified matrix samples; laboratory fortified sample matrix duplicates; and concentration fortified.
23. Additional Value	Represents the true value or the fortified concentration for spiked samples for QC Sample Analysis Types (CCCL, CCCM, CCCH, QCS, LFB, LFSM, and LFSMD).
24. Laboratory Identification Code	The code, assigned by EPA, used to identify each laboratory. The code begins with the standard two-character State postal abbreviation; the remaining five numbers are unique to each laboratory in the State.
25. Sample Event Code	A code assigned by the PWS for each sample event. This will associate samples with the PWS monitoring plan to allow EPA to track compliance and completeness. Systems must assign the following codes:
	SE1, SE2, SE3, and SE4—Represent samples collected to meet UCMR Assessment Monitoring requirements; where “SE1” and “SE2” represent the first and second sampling period for all water types; and “SE3” and “SE4” represent the third and fourth sampling period for SW, GU, and MX sources only.
26. Historical Information for Contaminant Detections and Treatment	A yes or no answer provided by the PWS for each entry point to the distribution system. Question: Have you tested for the contaminant in your drinking water in the past? YES = If yes, did you modify your treatment and if so, what types of treatment did you implement? Select all that apply.
	PAC = Application of powder activated carbon.
	GAC = Granular activated carbon adsorption (not part of filters in CON, SFN, INF, DFL, or SSF).
	IEX = Ionic exchange.
	NRO = Nanofiltration and reverse osmosis.
	OZN = Ozone.
	BAC = Biologically active carbon.
	MFL = Membrane filtration.
	UVL = Ultraviolet light.
	OTH = Other.
	NMT = Not modified after testing.
	NO = Have never tested for the contaminant.
	DK = Do not know.
27. Potential PFAS Sources	A yes or no answer provided by the PWS for each entry point to the distribution system. Question: Are you aware of any potential current and/or historical sources of PFAS that may have impacted the drinking water sources at your water system?
	YES = If yes, select all that apply:
	MB = Military base.
	FT = Firefighting training school.
	AO = Airport operations.
	CW = Car wash or industrial launderers.
	PS = Public safety activities ( e.g., fire and rescue services).
	WM = Waste management.
	HW = Hazardous waste collection, treatment, and disposal.
	UW = Underground injection well.
	SC = Solid waste collection, combustors, incinerators.
	MF = Manufacturing.
	FP = Food packaging.
	TA = Textile and apparel ( e.g., stain- and water-resistant, fiber/thread, carpet, house furnishings, leather).
	PP = Paper.
	CC = Chemical.
	PR = Plastics and rubber products.
	MM = Machinery.
	CE = Computer and electronic products.
	FM = Fabricated metal products (e.g., nonstick cookware).
	PC = Petroleum and coal products.
	FF = Furniture.
	OG = Oil and gas production.
	UT = Utilities (e.g ., sewage treatment facilities).
	CT = Construction (e.g ., wood floor finishing, electrostatic painting).
	OT = Other.
	NO = Not aware of any potential current and/or historical sources.
	DK = Do not know.

Subpart E—Special Regulations, Including Monitoring Regulations and Prohibition on Lead Use

3. Amend §141.40 as follows:

a. In paragraph (a) introductory text, remove the text “December 31, 2015” and add in its place the text “February 1, 2021 or subsequent corrections from the State”;

b. Revise paragraphs (a)(2)(ii) introductory text, (a)(2)(ii)(A), and (a)(3);

c. In paragraph (a)(4)(i) introductory text, remove the text “December 31, 2017” and add in its place the text “December 31, 2022”;

d. Revise paragraphs (a)(4)(i)(A) through (C), (a)(4)(ii) introductory text, and the first sentence in paragraph (a)(4)(ii)(A);

e. Remove paragraph (a)(4)(iii);

f. In paragraph (a)(5)(ii), revise the fifth and sixth sentences;

g. Revise paragraph (a)(5)(iii) introductory text;

h. Remove and reserve paragraph (a)(5)(iv); and

i. Revise paragraphs (a)(5)(v) and (vi) and paragraph (c).

The revisions read as follows:

§141.40 Monitoring requirements for unregulated contaminants.

(a) * * *

(2) * * *

(ii) Small systems. EPA will provide sample containers, provide pre-paid air bills for shipping the sampling materials, conduct the laboratory analysis, and report and review monitoring results for all small systems selected to conduct monitoring under paragraphs (a)(2)(ii)(A) through (C) of this section. If you own or operate a PWS (other than a transient non-community water system) that serves a retail population of 10,000 or fewer people and you are notified of monitoring requirements by the State or EPA, you must monitor as follows:

(A) Assessment Monitoring. You must monitor for the contaminants on List 1 per table 1 to paragraph (a)(3) if you are notified by your State or EPA that you are part of the State Monitoring Plan for Assessment Monitoring.

* * * * *

(3) Analytes to be monitored. Lists 1, 2, and 3 contaminants are provided in table 1 to paragraph (a)(3):

Table 1 to Paragraph(a)(3)—UCMR Contaminant List
1—Contaminant	2—CASRN	3—Analytical methods ^a	4—Minimum reporting level ^b	5—Sampling location ^c	6—Period during which sample collection to be completed
Column headings are:
1—Contaminant: The name of the contaminant to be analyzed.
2—CASRN (Chemical Abstracts Service Registry Number) or Identification Number: A unique number identifying the chemical contaminants.
3—Analytical Methods: Method numbers identifying the methods that must be used to test the contaminants.
4—Minimum Reporting Level (MRL): The value and unit of measure at or above which the concentration of the contaminant must be measured using the approved analytical methods. If EPA determines, after the first six months of monitoring that the specified MRLs result in excessive resampling, EPA will establish alternate MRLs and will notify affected PWSs and laboratories of the new MRLs. N/A is defined as non-applicable.
5—Sampling Location: The locations within a PWS at which samples must be collected.
6—Period During Which Sample Collection to be Completed: The time period during which the sampling and testing will occur for the indicated contaminant.
^a The analytical procedures shall be performed in accordance with the documents associated with each method, see paragraph (c) of this section.
^b The MRL is the minimum concentration of each analyte that must be reported to EPA.
^c Sampling must occur at your PWS's entry points to the distribution system (EPTDSs), after treatment is applied, that represent each non-emergency water source in routine use over the 12-month period of monitoring. Systems that purchase water with multiple connections from the same wholesaler may select one representative connection from that wholesaler. The representative EPTDS must be a location within the purchaser's water system. This EPTDS sampling location must be representative of the highest annual volume connections. If the connection selected as the representative EPTDS is not available for sampling, an alternate highest volume representative connection must be sampled. See 40 CFR 141.35(c)(3) for an explanation of the requirements related to the use of representative GW EPTDSs.
List 1: Assessment Monitoring
Per- and Polyfluoroalkyl Substances (PFAS)
11-chloroeicosafluoro-3-oxaundecane-1-sulfonic acid (11Cl-PF3OUdS)	763051-92-9	EPA 533	0.005 µg/L	EPTDS	1/1/2023-12/31/2025
1H, 1H, 2H, 2H-perfluorodecane sulfonic acid (8:2 FTS)	39108-34-4	EPA 533	0.005 µg/L	EPTDS	1/1/2023-12/31/2025
1H, 1H, 2H, 2H-perfluorohexane sulfonic acid (4:2 FTS)	757124-72-4	EPA 533	0.003 µg/L	EPTDS	1/1/2023-12/31/2025
1H, 1H, 2H, 2H-perfluorooctane sulfonic acid (6:2 FTS)	27619-97-2	EPA 533	0.005 µg/L	EPTDS	1/1/2023-12/31/2025
4,8-dioxa-3H-perfluorononanoic acid (ADONA)	919005-14-4	EPA 533	0.003 µg/L	EPTDS	1/1/2023-12/31/2025
9-chlorohexadecafluoro-3-oxanone-1-sulfonic acid (9Cl-PF3ONS)	756426-58-1	EPA 533	0.002 µg/L	EPTDS	1/1/2023-12/31/2025
hexafluoropropylene oxide dimer acid (HFPO-DA) (GenX)	13252-13-6	EPA 533	0.005 µg/L	EPTDS	1/1/2023-12/31/2025
nonafluoro‐3,6‐dioxaheptanoic acid (NFDHA)	151772-58-6	EPA 533	0.02 µg/L	EPTDS	1/1/2023-12/31/2025
perfluoro (2‐ethoxyethane) sulfonic acid (PFEESA)	113507-82-7	EPA 533	0.003 µg/L	EPTDS	1/1/2023-12/31/2025
perfluoro‐3‐methoxypropanoic acid (PFMPA)	377-73-1	EPA 533	0.004 µg/L	EPTDS	1/1/2023-12/31/2025
perfluoro‐4‐methoxybutanoic acid (PFMBA)	863090-89-5	EPA 533	0.003 µg/L	EPTDS	1/1/2023-12/31/2025
perfluorobutanesulfonic acid (PFBS)	375-73-5	EPA 533	0.003 µg/L	EPTDS	1/1/2023-12/31/2025
perfluorobutanoic acid (PFBA)	375-22-4	EPA 533	0.005 µg/L	EPTDS	1/1/2023-12/31/2025
perfluorodecanoic acid (PFDA)	335-76-2	EPA 533	0.003 µg/L	EPTDS	1/1/2023-12/31/2025
perfluorododecanoic acid (PFDoA)	307-55-1	EPA 533	0.003 µg/L	EPTDS	1/1/2023-12/31/2025
perfluoroheptanesulfonic acid (PFHpS)	375-92-8	EPA 533	0.003 µg/L	EPTDS	1/1/2023-12/31/2025
perfluoroheptanoic acid (PFHpA)	375-85-9	EPA 533	0.003 µg/L	EPTDS	1/1/2023-12/31/2025
perfluorohexanesulfonic acid (PFHxS)	355-46-4	EPA 533	0.003 µg/L	EPTDS	1/1/2023-12/31/2025
perfluorohexanoic acid (PFHxA)	307-24-4	EPA 533	0.003 µg/L	EPTDS	1/1/2023-12/31/2025
perfluorononanoic acid (PFNA)	375-95-1	EPA 533	0.004 µg/L	EPTDS	1/1/2023-12/31/2025
perfluorooctanesulfonic acid (PFOS)	1763-23-1	EPA 533	0.004 µg/L	EPTDS	1/1/2023-12/31/2025
perfluorooctanoic acid (PFOA)	335-67-1	EPA 533	0.004 µg/L	EPTDS	1/1/2023-12/31/2025
perfluoropentanesulfonic acid (PFPeS)	2706-91-4	EPA 533	0.004 µg/L	EPTDS	1/1/2023-12/31/2025
perfluoropentanoic acid (PFPeA)	2706-90-3	EPA 533	0.003 µg/L	EPTDS	1/1/2023-12/31/2025
perfluoroundecanoic acid (PFUnA)	2058-94-8	EPA 533	0.002 µg/L	EPTDS	1/1/2023-12/31/2025
n-ethyl perfluorooctanesulfonamidoacetic acid (NEtFOSAA)	2991-50-6	EPA 537.1	0.005 µg/L	EPTDS	1/1/2023-12/31/2025
n-methyl perfluorooctanesulfonamidoacetic acid (NMeFOSAA)	2355-31-9	EPA 537.1	0.006 µg/L	EPTDS	1/1/2023-12/31/2025
perfluorotetradecanoic acid (PFTA)	376-06-7	EPA 537.1	0.008 µg/L	EPTDS	1/1/2023-12/31/2025
perfluorotridecanoic acid (PFTrDA)	72629-94-8	EPA 537.1	0.007 µg/L	EPTDS	1/1/2023-12/31/2025
Metal/Pharmaceutical
Lithium	7439-93-2	EPA 200.7, SM 3120 B, ASTM D1976-20	9 µg/L	EPTDS	1/1/2023-12/31/2025
List 2: Screening Survey
Reserved	Reserved	Reserved	Reserved	Reserved	Reserved
List 3: Pre-Screen Testing
Reserved	Reserved	Reserved	Reserved	Reserved	Reserved

(4) * * *

(i) * * *

(A) Sample collection period. You must collect the samples in one continuous 12-month period for List 1 Assessment Monitoring, and, if applicable, for List 2 Screening Survey, or List 3 Pre-Screen Testing, during the timeframe indicated in column 6 of table 1 to paragraph (a)(3) of this section. EPA or your State will specify the month(s) and year(s) in which your monitoring must occur. As specified in 40 CFR 141.35(c)(5), you must contact EPA if you believe you cannot collect samples according to your schedule.

(B) Frequency. You must collect the samples within the timeframe and according to the frequency specified by contaminant type and water source type for each sampling location, as specified in table 2 to this paragraph (a)(4)(i)(B). For the second or subsequent round of sampling, if a sample location is non-operational for more than one month before and one month after the scheduled sampling month ( i.e., it is not possible for you to sample within the window specified in table 2), you must notify EPA as specified in 40 CFR 141.35(c)(5) to reschedule your sampling.

Table 2 to Paragraph ( )(4)( )(B)—Monitoring Frequency by Contaminant and Water Source Types
Contaminant type	Water source type	Timeframe	Frequency ¹
¹ Systems must assign a sample event code for each contaminant listed in Table 1. Sample event codes must be assigned by the PWS for each sample event. For more information on sample event codes see 40 CFR 141.35(e) Table 1.
List 1 Contaminants	Surface water, Mixed, or GWUDI	12 months	You must monitor for four consecutive quarters. Sample events must occur three months apart. (Example: If first monitoring is in January, the second monitoring must occur any time in April, the third any time in July, and the fourth any time in October).
	Ground water	12 months	You must monitor twice in a consecutive 12-month period. Sample events must occur 5-7 months apart. (Example: If the first monitoring event is in April, the second monitoring event must occur any time in September, October, or November.)

(C) Location. You must collect samples for each List 1 Assessment Monitoring contaminant, and, if applicable, for each List 2 Screening Survey, or List 3 Pre-Screen Testing contaminant, as specified in table 1 to paragraph (a)(3) of this section. Samples must be collected at each sample point that is specified in column 5 and footnote c of table 1 to paragraph (a)(3) of this section. If you are a GW system with multiple EPTDSs, and you request and receive approval from EPA or the State for sampling at representative EPTDS(s), as specified in 40 CFR 141.35(c)(3), you must collect your samples from the approved representative sampling location(s).

* * * * *

(ii) Small systems. If you serve a population of 10,000 or fewer people and are notified that you are part of the State Monitoring Plan, you must comply with the requirements specified in paragraphs (a)(4)(ii)(A) through (H) of this section. If EPA or the State informs you that they will be collecting your UCMR samples, you must assist them in identifying the appropriate sampling locations and in collecting the samples.

(A) Sample collection and frequency. You must collect samples at the times specified for you by the State or EPA. Your schedule must follow both the timing of monitoring specified in table 1 to paragraph (a)(3) of this section, List 1, and, if applicable, List 2, or List 3, and the frequency of monitoring in table 2 to paragraph (a)(4)(i)(B) of this section.

* * * * *

(5) * * *

(ii) * * * To participate in the UCMR Laboratory Approval Program, the laboratory must register and complete the necessary application materials by August 1, 2022. Correspondence must be addressed to: UCMR Laboratory Approval Coordinator, USEPA, Technical Support Center, 26 West Martin Luther King Drive, (MS 140), Cincinnati, Ohio 45268; or emailed to EPA at: UCMR_Lab_Approval@epa.gov.

(iii) Minimum Reporting Level. The MRL is defined by EPA as the quantitation limit achievable, with 95 percent confidence, by 75 percent of laboratories nationwide, assuming the use of good instrumentation and experienced analysts.

* * * * *

(v) Method defined quality control. You must ensure that your laboratory analyzes Laboratory Fortified Blanks and conducts Laboratory Performance Checks, as appropriate to the method's requirements, for those methods listed in column 3 in table 1 to paragraph (a)(3) of this section. Each method specifies acceptance criteria for these QC checks.

(vi) Reporting. You must require your laboratory, on your behalf, to post and approve these data in EPA's electronic data reporting system, accessible at https://www.epa.gov/dwucmr, for your review within 90 days from the sample collection date. You then have 30 days from when the laboratory posts and approves your data to review, approve, and submit the data to the State and EPA, via the agency's electronic data reporting system. If you do not electronically approve and submit the laboratory data to EPA within 30 days of the laboratory posting approved data, the data will be considered approved by you and available for State and EPA review.

* * * * *

(c) Incorporation by reference. The standards required in this section are incorporated by reference into this section with the approval of the Director of the Federal Register under 5 U.S.C. 552(a) and 1 CFR part 51. All approved material is available for inspection at U.S. Environmental Protection Agency, Water Docket, EPA/DC, EPA West, Room 3334, 1301 Constitution Ave. NW, Washington, DC 20004, (202) 566-1744, email Docket-customerservice@epa.gov, or go to https://www.epa.gov/dockets/epa-docket-center-reading-room, and is available from the sources indicated elsewhere in this paragraph. The material is also available for inspection at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, email fr.inspection@nara.gov, or go to www.archives.gov/federal-register/cfr/ibr-locations.html.

(1) U.S. Environmental Protection Agency, EPA West, Room 3334, 1301 Constitution Ave. NW, Washington, DC 20004; telephone: (202) 566-1744.

(i) Method 200.7, “Determination of Metals and Trace Elements in Water and Wastes by Inductively Coupled Plasma-Atomic Emission Spectrometry,” Revision 4.4, EMMC Version, 1994. Available at https://www.epa.gov/esam/method-2007-determination-metals-and-trace-elements-water-and-wastes-inductively-coupled-plasma.

(ii) Method 537.1, “Determination of Selected Per- and Polyfluorinated Alkyl Substances in Drinking Water by Solid Phase Extraction and Liquid Chromatography/Tandem Mass Spectrometry,” Version 2.0, 2020. Available at https://www.epa.gov/water-research/epa-drinking-water-research-methods.

(iii) Method 533, “Determination of Per- and Polyfluoroalkyl Substances in Drinking Water by Isotope Dilution Anion Exchange Solid Phase Extraction and Liquid Chromatography/Tandem Mass Spectrometry,” November 2019, EPA 815-B-19-020. Available at https://www.epa.gov/dwanalyticalmethods.

(2) American Public Health Association, 800 I Street NW, Washington, DC 20001-3710; telephone: (202) 777-2742; email: comments@apha.org; www.apha.org.

(i) “Standard Methods for the Examination of Water & Wastewater,” 23rd edition (2017).

(A) SM 3120 B, “Metals by Plasma Emission Spectroscopy (2017): Inductively Coupled Plasma (ICP) Method.”

(B) [Reserved]

(ii) “Standard Methods Online,” approved 1999; https://www.standardmethods.org.

(A) SM 3120 B, “Metals by Plasma Emission Spectroscopy: Inductively Coupled Plasma (ICP) Method,” revised December 14, 2020.

(B) [Reserved]

(3) ASTM International, 100 Barr Harbor Drive, West Conshohocken, PA 19428-2959; telephone: (610) 832-9500; email: service@astm.org; www.astm.org.

(i) ASTM D1976-20, “Standard Test Method for Elements in Water by Inductively-Coupled Plasma Atomic Emission Spectroscopy,” approved May 1, 2020.

(ii) [Reserved]

[FR Doc. 2021-27858 Filed 12-23-21; 8:45 am]

BILLING CODE 6560-50-P

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

2024-10-07T05:00:00Z

Vehicle emissions defeat devices: Steer clear!

The Environmental Protection Agency (EPA) regulates emissions from motor vehicles, engines, and the fuels used to operate them. The agency requires vehicle manufacturers to install control devices that limit the amount of air pollutants a vehicle may emit. However, defeat devices attempt to detour around these controls and allow emissions beyond federal limits.

Excess vehicle emissions can threaten the health of others, impair state and local efforts to maintain national air quality standards, and — as one company and its owner learned — subject you and your business to steep monetary penalties.

Steer clear of defeat devices to ensure a smooth regulatory road.

Company learns multimillion-dollar lesson

EPA and the U.S. Department of Justice reached a settlement agreement with a North Carolina automotive parts company and its owner for violating the Clean Air Act (CAA) requirements for mobile sources by:

Manufacturing, selling, and installing more than 250,000 defeat devices on diesel pickup trucks; and
Installing aftermarket defeat devices on hundreds of diesel pickup trucks.

The company and its owner face civil and criminal consequences and will pay a total of $10 million in fees and penalties.

Civil enforcement

A July 2024 consent decree (pending court approval) requires both parties to pay a combined $7 million penalty. It also bans the company and owner from:

Manufacturing, selling, offering to sell, and installing defeat devices;
Transferring intellectual property to help others make or sell defeat devices; and
Investing in or profiting from other businesses’ defeat devices.

Criminal enforcement

Both the company and owner pleaded guilty to conspiring to violate the CAA. The federal court ordered the company to pay a $2.4 million fine and complete three years of organizational probation. It also ordered the owner to pay a $600,000 fine and serve three years of probation.

What are defeat devices?

A defeat device is any component that “bypasses, impairs, defeats, or disables the control of emissions of any regulated pollutant” (40 CFR 1068.101(b)(2)). Put simply, it’s an illegal device that removes or disables a vehicle’s emissions controls.

There are generally two types of defeat devices: hardware (such as modified automotive parts) and software (like delete tuners). In fact, many of the devices consist of both types that work in tandem. Federal law (and EPA regulations at 1068.101(b)) bans defeat devices used to swerve around vehicle emissions controls. Section 203(a)(3) of the CAA prohibits anyone from:

Tampering with an EPA-certified vehicle’s emissions control devices to remove them or make them inoperative before selling the vehicle,
Knowingly tampering with an EPA-certified vehicle’s emissions control devices to remove them or make them inoperative after the vehicle is sold and delivered to the purchaser, and
Knowingly manufacturing, selling, offering to sell, or installing defeat devices that bypass, defeat, or render inoperative any emission control device.

Common emission control devices include:

Onboard diagnostic systems,
Catalytic converters,
Electronic control units,
Fuel systems, and
Diesel particulate filters.

Who do the regulations affect?

The prohibition on defeat devices applies to everyone, from the original equipment manufacturer that installs the vehicle emissions controls to the vehicle owner and operators.

The 1990 CAA Amendments expanded the tampering provision in Section 203(a)(3) to include “any person.” Further, EPA’s regulations at 1068.101(b) “apply to everyone,” such as:

Vehicle manufacturers;
Vehicle dealers;
Automobile repair shops;
Commercial mechanics;
Fleet operators;
Aftermarket automotive part manufacturers, sellers, and installers;
Owners; and
Operators.

Compliance tips

Consider these helpful suggestions for maintaining compliance:

Check and comply with your state and local regulations, as they may be more stringent than federal requirements and impose additional rules. For example, states may require certified technicians to conduct automotive maintenance services on emission controls. States may also prohibit operating, selling, and/or registering tampered vehicles.
Purchase aftermarket automotive parts only from reputable sources. Obtain proof that the aftermarket parts won’t increase emissions.
Self-disclose any potential violations you find to EPA and/or the state environmental agency. EPA and many states will lower or waive civil penalties for self-reporting violations.

The case against this automotive parts company and owner serves as a multimillion-dollar reminder about making, selling, installing, or using defeat devices — steer clear!

Key to remember: Steer clear of defeat devices that try to detour around EPA’s vehicle emissions controls to ensure a smooth regulatory road.

r40CFR1068.101 40 CFR 1068.101 40 CFR 1068.101 What general actions does this regulation prohibit?

2024-09-30T05:00:00Z

Our Nation’s air — A recap of 2023

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

Continued emissions reduction

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

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

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

Effects on health and the environment

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

Actions being taken

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

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

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

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

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

Most Recent Highlights In Safety & Health

2024-09-25T05:00:00Z

EPA extends 2024 Chemical Data Reporting deadline

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

Who’s impacted?

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

Why the delay?

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

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

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

About the 2024 CDR report

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

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

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2024-09-24T05:00:00Z

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

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

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

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

Survey data

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

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

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

Healthcare is dogged by OSHA

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

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

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

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

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

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

Industry hit by worker injuries/illnesses

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

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

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

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

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

Where to start

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

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

Key to remember

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

2024-09-24T05:00:00Z

How to conduct 3 types of solid waste assessments

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

Why conduct a solid waste assessment?

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

Through a waste assessment, your facility can:

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

Types of solid waste assessments

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

Records examinations

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

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

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

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

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

Finally:

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

Facility walkthroughs

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

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

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

Waste sorts

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

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

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

Which waste assessment method is best for your facility?

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

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

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

2024-09-23T05:00:00Z

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

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

The seven persistent and bioaccumulative HAPs include:

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

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

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

Implications for reclassified facilities

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

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

Exemptions and uncertainties

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

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

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

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

2024-09-16T05:00:00Z

Reclassifying facilities must keep stricter emission standards for 7 HAPs

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

Who does this impact?

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

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

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

Which HAPs are affected?

The final rule targets seven HAPs:

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

What are the notification changes?

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

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

EPA also added electronic submission procedures for confidential business information.

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

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2024-09-13T05:00:00Z

Guide to underground storage tank financial requirements

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

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

Who’s covered, and what’s covered?

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

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

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

What’s the amount of coverage required?

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

Type of business

EPA categorizes the types of businesses into two groups:

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

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

Throughput

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

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

Number of USTs

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

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

What are the methods for demonstrating financial responsibility?

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

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

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

What happens if a financial assurer cancels my coverage?

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

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

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

Check your state’s regulations!

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

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

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EHS Monthly Round-Up - August 2024

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

Two State Plan agencies allegedly provided advance notice of workplace inspections to employers, a practice that’s prohibited under the Occupational Safety and Health Act. Now, lawmakers have requested that the Department of Labor’s acting secretary address the allegations and explain what challenges OSHA faces when monitoring and enforcing State Plan compliance.

A recent study shows jobs in agriculture, forestry, fishing, and hunting are among California’s most dangerous, accounting for the highest number of fatalities among full-time workers. Transportation and utilities jobs ranked second and construction was third.

Remote isolation of process equipment can quickly stop the release of hazardous materials, which can help prevent fatalities and injuries, limit facility damage, and better protect communities and the environment. A U.S. Chemical Safety Board study explores their use and makes recommendations for their utilization in chemical facilities.

A National Safety Council report explores the role of diversity, equity, and inclusion on work-related musculoskeletal disorders, or MSDs. MSDs are the most common workplace injury and often lead to worker disability, early retirement, and employment limitations.

And finally, turning to environmental news, EPA published a final rule that revises its hazardous waste export manifest regulations. All hazardous waste shipments and manifest-related reports will be managed electronically through the agency’s e-Manifest program.

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

2024-09-06T05:00:00Z

Expert Insights: What's an environmental incident?

Yes, this includes traditional spills and releases. But have you considered looking beyond that? It can be beneficial to evaluate all types of environmental situations in your compliance programs that warrant tracking, corrective action, and, sometimes, reporting.

First, identify how your organization defines environmental incidents. You may decide it includes a wide range of environmental events or is very narrow in focus. For example, determine if it makes sense to include only releases that trigger regulatory reporting or if there’s a lower reporting threshold that’s more appropriate. If you track and investigate small spills, determine down to what level they’re addressed.

If your organization has multiple locations, does it make sense to create one set of rules for environmental incidents? Or does it create a stronger program to set different criteria and thresholds for each site or group of locations? I recently worked with a customer that operates three beverage manufacturing facilities and a dozen distribution centers. Because the risks and materials at each were different enough, it made sense for the customer to create distinct internal reporting criteria for each type of facility.

Also, consider the potential value of tracking and recording spills or leaks that occur inside buildings. These typically aren’t reportable, so many of you may be wondering why you should bother. There are many benefits to recording inside spills and leaks. I’ve worked with some environmental incident programs that effectively used this tracking as a leading indicator. Plus, you can see trends in equipment maintenance, operation, and housekeeping that, if adjusted, can help prevent similar incidents from occurring outside that would be reportable and could have a negative environmental impact. Identifying and investigating indoor spills can be an important component of employee safety as well.

Administrative program pieces are less commonly associated with an “incident,” but they should be considered. These incidents can fall under the radar, but most environmental enforcement actions are related to administrative incidents. Missed recordkeeping, missed reporting deadlines, and incomplete reports are all areas that trigger violations.

Clearly defining when something is and isn’t officially considered an incident helps you maintain a strong and compliant environmental program.

2024-08-20T05:00:00Z

Characteristic hazardous wastes: When actions speak louder than lists

“Actions speak louder than words.” You can apply this expression to hazardous waste with a minor revision: “Actions speak louder than lists.” Even if a solid waste isn’t on any of the Environmental Protection Agency’s (EPA’s) hazardous waste lists, it may still be considered hazardous based on how it acts.

The Resource Conservation and Recovery Act (RCRA) requires all businesses to determine whether the waste generated is hazardous. If it’s a hazardous waste, it’s subject to the RCRA Subtitle C hazardous waste management regulations.

A waste is hazardous if:

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

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

Characteristic hazardous wastes

Let’s take a closer look at each of the four hazardous waste characteristics.

1. Ignitability

Ignitable wastes are easily combustible or flammable. They include:

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

Common ignitable wastes are paints and degreasers.

2. Corrosivity

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

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

Examples are rust removers, certain cleaning fluids, and battery acid.

3. Reactivity

Reactive wastes are unstable wastes that can react rapidly and/or violently when mixed with other materials. These include:

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

Bleach, peroxide, and lithium-sulfur batteries are considered reactive.

4. Toxicity

Toxic wastes have contaminants that are harmful or fatal through ingestion or skin contact. Improper disposal of toxic wastes can pollute groundwater.

Wastes with any of the contaminants in concentrations at or above the regulatory level specified in the regulations (261.24) are designated as toxic.

Cadmium, lead, and mercury are examples.

Is it a characteristic waste?

The RCRA hazardous waste identification process requires you to determine whether a waste is listed and if it has any hazardous characteristics. That means that regardless of whether the waste is listed, you must determine if the waste has one or more hazardous characteristics.

You may determine if a waste has any hazardous characteristics by:

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

Characteristic hazardous wastes comparison table

Use the RCRA Characteristic Hazardous Wastes table as a helpful reference when determining whether a waste has hazardous characteristics.

RCRA Characteristic Hazardous Wastes
	Ignitable waste	Corrosive waste	Reactive waste	Toxic waste
Description	Easily catches fire and sustains combustion	Readily dissolves metal and other materials	Quickly reacts violently or explodes	Excessively leaches dangerous contaminants
EPA Hazardous Waste Number(s)	D001	D002	D003	D004–D043*
Approved SW-846 Test Methods	1010B 1020C 1030	9040C 1110A	None	1311
Regulation (40 CFR Part 261)	261.21	261.22	261.23	261.24
* “Table 1 — Maximum Concentration of Contaminants for the Toxicity Characteristic” at 261.24 lists the EPA Hazardous Waste Number for each contaminant.

Consider these RCRA reminders when designating waste:

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

All nonexempt characteristic hazardous waste that your facility generates is subject to RCRA’s Subtitle C hazardous waste management requirements.

Key to remember: Wastes that exhibit any of the four hazardous characteristics (ignitability, corrosivity, reactivity, and toxicity) are subject to RCRA Subtitle C regulations.

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

2024-08-05T05:00:00Z

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

The Environmental Protection Agency (EPA) limits the pollutants in industrial wastewater that facilities can release through the National Pollutant Discharge Elimination System (NPDES) Program. Any facility that discharges pollutants directly into the waters of the United States must obtain an NPDES permit.

Each permit lists the quantity, discharge rate, and concentration discharge limits for each pollutant (known as effluent limitations). The permit also covers monitoring and reporting requirements, applicable special conditions (like compliance schedules), and standard conditions that apply to all permits. States typically issue NPDES permits. EPA issues the federal permit, called the Multi-Sector General Permit (or MSGP), for just a handful of states and territories.

Does my facility require an NPDES permit?

The federal regulation at 40 CFR 122.1(b)(1) states that the NPDES program requires permits for the discharge of “pollutants” from any “point source” into “waters of the United States."

To determine whether your facility requires a permit, answer the following three questions.

Does the facility discharge covered pollutants?

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

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

EPA’s regulatory definition of “pollutants” (122.2) includes solid waste, sewage, chemical wastes, heat, rock, and more. However, it excludes sewage from vessels as well as certain materials injected into wells for oil or gas production and water derived from oil or gas production that’s disposed of in a well.

If your facility releases pollutants through its wastewater, the next factor to consider is how it discharges the pollutants.

Is the facility a point source?

A “point source” is defined at 122.2 as “any discernible, confined, and discrete conveyance … from which pollutants are or may be discharged.” It doesn’t include return flows from irrigated agriculture or agricultural stormwater runoff.

In clearer terms, a point source is a specific, identifiable source that discharges pollutants directly into a waterbody, like an industrial facility. Examples of points of discharge are pipes, ditches, tunnels, wells, and containers.

What if your facility discharges wastewater pollutants to a publicly owned treatment works facility? In this case, your facility is considered a non-point source (or indirect discharger) and must meet the requirements of the NPDES National Pretreatment Program.

Does the facility discharge into waters of the United States?

EPA’s current regulations define “waters of the United States” at 120.2. However, ongoing litigation has muddied the implementation of the current definition.

Here’s a general timeline of the definition’s changes:

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

Currently, EPA implements the definition according to the Revised Definition of “Waters of the United States, Conforming” rule in 23 states, the District of Columbia, and the U.S. territories. In the remaining 27 states, EPA implements the pre-2015 definition and interprets it consistently with the Sackett v. EPA decision.

Make sure to confirm with your state’s wastewater permitting agency which definition of waters of the United States applies to your facility.

If you answer “yes” to all three questions, your facility must obtain an NPDES permit.

What’s next?

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

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

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

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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.

EHS Monthly Round Up - October 2024

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

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

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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2024-11-07T06:00:00Z

Expert Insights: End-of-year environmental checklist

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EHS Monthly Round Up - September 2024

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

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

2024-09-16T05:00:00Z

Reclassifying facilities must keep stricter emission standards for 7 HAPs

Who does this impact?

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

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

Which HAPs are affected?

The final rule targets seven HAPs:

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

What are the notification changes?

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

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

EPA also added electronic submission procedures for confidential business information.

CAA Clean Air Act SMS Trial SMS Advanced SMS Trial Enterprise SMS Premium SMS Essential r40CFR63SubpartA 40 CFR 63 Subpart A

Most Popular Highlights In Transportation

2024-10-28T05:00:00Z

Avoid severe consequences of a hiring misstep with a driver qualification checklist

Carriers that do not follow a driver qualification (DQ) checklist for each hire and miss even one step may be subject to a multi-million-dollar verdict, violations, and loss of business.

To avoid compliance and risk management gaps, adopt safety management controls (policies and procedures) with specific hiring steps that exceed the regulations. The result is a documented and systematic evaluation of every potential driver’s qualifications to operate safely.

Why is using a checklist so critical?

Carriers may wonder “Why do more than the regulations require?” or “How important is consistent execution of company policies?” These are two questions answered by the American Transportation Research Institute (ATRI)’s 2022 study, Understanding the Impact of Nuclear Verdicts on the Trucking Industry.

In the study, defense and plaintiffs’ attorneys agreed on two things regarding protecting carriers from nuclear verdicts:

“Crash avoidance is everything,” and
“Strictly adhering to safety and operational policies is essential to staying out of court and/ or reducing award sizes.”

Another key point from the study was that almost any failure to follow the Federal Motor Carrier Safety Administration Regulations (FMCSRs), which are minimums, will be a focus of litigation. Conversely, carriers need to show that their procedures exceed the regulations and they uphold their duty to select the safest possible drivers. A well-constructed checklist accomplishes both.

An example of a checklist is at the following link:

DQ checklist

Three consequences of poor hiring practices

1. Increased risk of litigation

Failure to comply with the FMCSRs, along with missing clues about unsafe driving history, becomes the basis for a negligent hiring claim and excessive verdict.

Some industry best practices when evaluating prospective drivers include:

Questioning employment gaps greater than 30 days. This could indicate a license suspension or incarceration.
Using an expert who knows licensing authority coding and formats to scrutinize motor vehicle records (MVRs) for unsafe driving violations, suspensions, and crashes.
Requiring a new medical certification at hire by a company-approved Certified Medical Examiner to avoid the risk of drivers’ doctor-shopping.

2. Audit fines

Failing to maintain proper DQ files can result in non-compliance with the FMCSRs. This can lead to significant fines and penalties. For example, record-keeping penalties have to $1,544 per day, with a maximum penalty of $15,445.

Common driver hiring audit violations include:

Application missing, incomplete, or not compliant with 391.21.
Safety performance history from all regulated employers in the prior three years not documented.
The MVR shows the driver was not properly licensed for the vehicle assigned (wrong class, missing endorsement, restricted/suspended/revoked, etc.). The carrier’s reviewer needs to know what to look for because MVRs differ from state to state.
No documented road test or use of the exception in 391.33 which allows a current CDL or road test certificate to be used instead.

3. Damage to reputation

Headline crashes can severely damage a company’s reputation and ability to secure future business. Details of what contributed to a crash are often part of the news. Press disclosing a carrier’s poor hiring practices can result in customers losing trust and wanting to avoid vicarious liability (being sued because of a carrier’s crash while hauling their goods).

Key to remember: To reduce the risk of fines, litigation, and lost business, develop and always follow policies and procedures that exceed the FMCSRs.

2022-08-29T05:00:00Z

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

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

The basics of logging exemptions

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

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

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

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

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

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

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

30-minute break exemption

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

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

Common myths

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

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

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

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

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

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

Managing the use

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

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

Verifying compliance is important

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

2022-07-08T05:00:00Z

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

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

‘State and local laws’

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

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

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

For more information, see our ezExplanation on Roadside Inspections.

Not all 392.2 violations are used in CSA

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

Most common 392.2 violations

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

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

Key to remember

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

2021-03-10T06:00:00Z

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

If you’re planning to start a motor carrier operation or add a different type of service to an existing business, you need to know what type of carrier you will be. Motor carriers are considered either a for-hire carrier or a private carrier. To be a private carrier, 100 percent of the company’s movements must be to support its own operation. If the carrier is engaged in any for-hire activities, the Federal Motor Carrier Safety Administration (FMCSA) considers them a for-hire carrier.

For-hire vs. private

For-hire carriers use vehicles to transport people or property and are paid for their service. The fee could be a direct fee like a fare or a rate but could also be other indirect forms of compensation. Examples of for-hire operations include a trucking company that hauls other people’s property for a fee (direct compensation) or a hotel that includes in its service the transportation to and from the airport to the hotel (indirect compensation).

Private carriers, on the other hand, transport only their own goods or people. Examples include a manufacturer that uses its own commercial vehicles to transport its product, a construction or landscaping company that uses commercial vehicles to transport equipment and employees to job sites, or a utility company that operates commercial vehicles in support of its operations.

For-hire operating authority

While private carriers are not required to obtain operating authority from the FMCSA, for-hire carriers are required to get authority to move property or people that belong to somebody else and get paid for their service. Having authority is often referred to as having an MC Number.

The most common types of authority are:

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

If a company never operates a commercial motor vehicle (CMV), it is possible to have authority, but not have a USDOT number. For example, straight brokers or freight forwarders.

As part of obtaining for-hire authority, carriers must designate process agents and demonstrate financial responsibility (have proper insurance coverage).

One size does not fit all

Authorities are not all-inclusive. Separate authority is needed for each type of service offered. For instance, a for-hire, over-the-road carrier that also wants to be able to resell its extra demand will need both for-hire and brokerage authorities. A company is required to pay a $300 one-time fee for each type of authority needed.

Permanent authority required

There are no temporary permits available to substitute for authority. For-hire operations may not be performed until the proper authority has been granted. It’s not uncommon for otherwise private carriers to become for-hire carriers to generate revenue on back-hauls or help balance capacity and demand during slow periods or seasons.

Getting it right

Carriers need to get it right when it comes to authority. Carriers required to have authority — but don’t and operate anyway — can get themselves into trouble. Penalties for operating without proper authority can get expensive and can result in out-of-service orders.

Key to remember: Carriers are either for-hire or private, with for-hire carriers being paid for their services while private carriers transport only their own goods or people.

Related article: Process agents — what are they and do you need them?

2024-11-12T06:00:00Z

How did we get in this deep? A whistleblower case study

The Occupational Health and Safety Administration (OSHA) recently fined a motor carrier more than $175,000 for violating the whistleblower protections afforded drivers under the Surface Transportation Assistance Act. The fine involved back wages and interest, compensatory damages, and punitive damages for incidents involving one driver.

The main issue was a driver telling a supervisor the driver would not violate the hours-of-service regulations and would not drive when ill or fatigued. One question you should be asking is, “How does a company get from there to being fined more than $175,000?”

Here is the sequence of events (and the related regulations) that gets a carrier into the situation of having to pay such a fine:

The carrier assigns the driver a movement that is in violation of the safety regulations (the driver has reached the hours-of-service limits in 395.3; the driver is ill or fatigued, see 392.3; or there are safety-related defects on the vehicle, Part 393; etc.).
The driver raises a safety concern about the assignment, such as saying, “I can’t legally take the run” (a driver being prohibited from breaking the safety regulations is found everywhere in the regulations).
The carrier threatens employment action if the driver does not take the assignment. The threat is a violation of the coercion regulations at 390.6 and can result in an investigation by the Federal Motor Carrier Safety Administration (FMCSA) and a fine.
The carrier takes employment action, such as firing the driver, if the driver still will not do the assignment (the carrier has gone from threatening to taking action).
The driver lodges a Whistleblower Complaint under the Surface Transportation Assistance Act, which is investigated by OSHA.
OSHA determines that the employer punished the employee for reporting a safety concern. The employer is then fined, and the fine will involve back wages and interest, compensatory damages, and punitive damages.

So, how do you prevent this from happening? By have policies and procedures that prevent the situation from getting past the first two steps.

If a driver reports that there will be a violation of the safety regulations if a run is done (the driver is over hours, will be operating when ill or fatigued, the vehicle has defects on it, etc.), then address these concerns. Never threaten the driver to get the run completed.

Key to remember: Work with your drivers when they express safety and compliance concerns, rather than threatening or firing them!

2022-08-03T05:00:00Z

The importance of the split specimen in drug testing

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

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

What is a split specimen?

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

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

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

What happens while the split specimen is being tested?

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

Who pays for the split specimen to be tested?

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

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

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

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

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

Most Popular Highlights In Human Resources

2024-08-28T05:00:00Z

When to skip a PIP and move to terminate an employee

The U.S. Bureau of Labor statistics reported in July 2024 that there are 8.2 million job openings in the U.S., but only 7.2 million unemployed workers.

With that in mind, employers might choose to hang onto employees even if they’re under performing. But what about when complaints are rolling in from different angles? Take, for example, a lackluster supervisor who’s annoying employees and disappointing customers.

An employer could be hesitant to let the supervisor go, especially if there’s no documentation backing up claims of misconduct. The employer must weigh their options to decide if putting the supervisor on a performance improvement plan (PIP) or moving right to termination is the ideal choice.

At-will employment

For starters, in most states employers may terminate an employee at-will, meaning they can fire employees for pretty much any reason as long as it doesn’t discriminate against someone in a protected class based on sex, age, race, religion, etc. Employers also cannot terminate in retaliation for an employee making a claim of harassment, discrimination, or safety concerns.

Aside from these limits, employers can terminate employees for good cause, bad cause, or no cause at all.

PIP or terminate

Deciding whether to put an employee on a PIP or terminate must be decided on a case-by-case basis.

A PIP is usually for job performance issues (hence, performance improvement plan). This could mean anything from not making enough sales to being inept at the job’s essential functions. If job performance doesn’t improve under the PIP, termination may be the end result depending on company policies and practices.

Even if an employee has job performance issues, the employer can terminate without going through the PIP process first, unless the usual process is to implement a PIP with employees who have had similar problems. In that case, not doing a PIP could be seen as discrimination against an employee, especially if the person falls into a protected class.

Workplace misconduct, however, is another situation altogether. This could be anything from a one-off poor joke to pervasive harassment. Snapping at customers or coworkers (or worse), for example, is a conduct issue. An employer could issue a warning or move right to termination if the behavior is clearly illegal or a serious threat to workplace safety.

Read more: ezExplanation on discharging employees

Termination tips

If an employer decides to terminate, they should treat the employee as respectfully as possible during the termination process. Also, an employer should carefully and clearly communicate the job-related reasons for the termination to avoid any hint of discrimination. Lastly, an employer should document the reasons and reiterate the steps taken leading up to the termination and keep those records handy in case the employee files a wrongful termination lawsuit.

Key to remember: Employers sometimes struggle when making termination decisions. Having a process in place and documenting steps along the way can help if a case lands in court.

Firing

2022-11-18T06:00:00Z

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

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

Does working overtime count toward the 1,250?

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

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

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

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

More about FMLA leave requirements

To be eligible to take FMLA leave, employees must:

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

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

Calculating the 1,250 hours worked

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

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

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

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

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

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2023-09-06T05:00:00Z

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

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

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

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

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

No link between leave and termination

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

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

Laffon appealed the case to the Ninth Circuit.

Statute of limitations

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

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

Ruling overturned

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

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

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

2024-11-14T06:00:00Z

Is gender dysphoria a disability?

The federal Americans with Disabilities Act (ADA) does not include a complete list of conditions that qualify as disabilities. Instead, the ADA has a general definition of a disability that the condition must meet: A disability is an impairment that substantially limits one or more major life activities.

Gender dysphoria would be a disability if it meets that definition.

What is gender dysphoria?

According to the Diagnostic and Statistical Manual (DSM-5), gender dysphoria is “a marked incongruence between one’s experienced/expressed gender and natal gender” (the gender one is born with) and “is associated with clinically significant distress or impairment in social, occupational, or other important areas of functioning.” In other words, an individual’s gender identity differs from their assigned sex at birth.

The condition can result in depression, chronic anxiety, panic attacks, and thoughts of suicide, all of which can limit an employee’s ability to work effectively. Many individuals whose gender identity differs from their birth sex, however, do not experience gender dysphoria and its associated conditions.

Limitations and accommodations

As with any potential disability, when an employee asks for a workplace change due to the condition, as part of an interactive process with the employee, employers should look at the employee’s limitations in relation to the job’s essential functions, and identify the barriers in between. An accommodation would work to reduce or eliminate the barriers.

Like any other condition, accommodations for employees with gender dysphoria can be wide-ranging, depending on the conditions experienced, job tasks, and needs. Accommodation ideas can include:

Job restructuring: Employees can perform their duties at different times of the day or in different locations to help them adjust to physical changes and work more comfortably and safely.
Schedule flexibility: This allows employees to attend therapy sessions and medical appointments, or manage symptoms or reactions to medication that may fluctuate throughout the day.
Modified break: Flexibility here helps them manage their symptoms during times of heightened anxiety or distress.
Rest area/private space: Carving out space gives employees time to collect themselves away from the demands of the work environment and coworkers.
Leave: Time off for a mental health day, medical appointments, or to manage symptoms during difficult times can help.
Support animals: They can help alleviate anxiety and provide a sense of security during challenging times.
Support persons: Having someone available to provide emotional support and aid when needed can help.
Remote work: Working from home might help reduce stress and anxiety associated with commuting to and navigating potentially unwelcoming coworkers.
Employee Assistance Programs: This benefit can provide access to confidential counseling, therapy, and support services to help manage mental health concerns.

Employers fare best when they engage in an interactive process with employees to figure out which accommodation would be effective.

Key to remember: Gender dysphoria could be a disability under the ADA. Employers should treat employees asking for accommodations as they would any employee with a disability.

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.

2024-11-04T06:00:00Z

AI may help with background checks, but FCRA is still the boss

When the Fair Credit Reporting Act (FCRA) was introduced in 1970, Artificial Intelligence (AI) wasn’t on the authors’ minds, but a federal agency has confirmed that in 2024 the law does apply to data collected by AI.

Employers were warned about using AI to monitor and evaluate workers in guidance issued October 24 by the U.S. Consumer Financial Protection Bureau (CFPB).

The guidance says that employers using third-party consumer reports — including background checks and surveillance-based AI or algorithmic scores about applicants or employees — must follow FCRA rules.

This means employers must:

Get prior consent from applicants and employees,
Be transparent about information used in adverse employment decisions, and
Allow applicants and employees to dispute inaccurate information.

Tools are increasingly invasive

The agency introduced the guidance saying that as employers increasingly use invasive tools to assess applicants and workers, people must be ensured they have rights over the data that is affecting their livelihoods and careers.

The FCRA is the principal law regulating employment screening, such as traditional background checks, also called “consumer reports.” The CFPB said it wishes to make clear that the FCRA’s protections apply to newer AI-based evaluation technologies, as well.

“The kind of scoring and profiling we’ve long seen in credit markets is now creeping into employment and other aspects of our lives,” said CFPB Director Rohit Chopra in a press release announcing the guidance. “Our action makes clear that long-standing consumer protections apply to these new domains just as they do to traditional credit reports.”

These “new domains” are AI tools that:

Assess and evaluate candidates and employees;
Monitor employee productivity; and
Predict employee behavior, including the likelihood of engaging in union organizing or estimating the probability that an employee will quit.

Recent technologies may use sensitive information unknown to workers, the CFPB said, which can significantly impact:

Hiring decisions,
Job assignments, and
Career advancement.

If reports contain inaccurate information that people aren’t given a chance to correct, it may cause them to:

Lose job opportunities,
Face unfair treatment, or
Suffer career setbacks.

The FCRA rules must be followed regardless of the use of AI in compiling the background check information. The agency recommends that employers review their practices when it comes to background checks to ensure compliance with the FCRA.

Key to remember: A federal agency released guidance for employers reminding them that background checks conducted using new technologies, such as AI, are still subject to FCRA rules.

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2024-11-05T06:00:00Z

‘Must-see’ CSB video warns OSHA to take regulatory action

What would you do if you were working at a chemical plant on a platform five stories up when suddenly a white, gaseous cloud of corrosive hydrogen chloride (HCl) spews out of a pipe in front of you? You quickly slip on your “escape” respirator, but the gas is now burning your skin because you’re not wearing a chemical protective suit.

Every second of exposure seems like an eternity. You realize you face three hard choices:

Rush directly into the blinding, corrosive cloud to access the single staircase on the other side of the platform to exit; or
Go over the guardrail on your side of the platform and attempt to climb down 70 feet of piping without fall protection; or
Stay put and suffer through the chemical release for who knows how long until it runs out of gas and dissipates enough for you to evacuate via the staircase.

Real workers, real casualties

This sounds like something out of a movie, but it happened in real life at a silicone manufacturing plant in Tennessee four years ago. Seven workers were on the platform:

Three workers fell while attempting to climb down the piping, with one worker fatally and two seriously injured.
One worker ran toward the staircase, only to bump into equipment and have his respirator knocked off. He was seriously burned and moved back to the opposite side of the platform, where three workers placed him in a safety shower.
The remaining three workers tried their best to shield each other as they waited three minutes until all the gas escaped the system.

All four on the platform then evacuated using the staircase.

See it for yourself

The Chemical Safety and Hazard Investigation Board (CSB) released a new 17-minute animated video, “No Way Down,” about the incident, its causes, and recommendations. The video follows a final investigation report dated June 15, 2023.

While both the video and the report are specific to the incident, the lessons learned can be applied broadly at other chemical plants and even other work facilities nationwide. CSB member Catherine Sandoval said, “The CSB believes that our findings and recommendations will … prevent another needless tragedy.”

Safety issues

The Board explains that the cause of the incident was the inadvertent over-torquing of bolts on an HCl piping flange connection to a heat exchanger. This resulted in a pipe fracture and the release of the gas in the vicinity of seven contract workers. However, the latest video and report address four key safety issues that CSB found contributed to the incident:

Missing written procedures — The company tasked a contractor (consisting of three workers on a pipefitter crew) to torque bolts on active chemical piping. The company did not have a written procedure to execute the task. Instead, it relied on the equipment manual to communicate torque requirements. The manual did not include torque requirements for some of the bolts. As a result, the contractor ended up over-torquing them.
No control of hazardous energy — The company did not consider the torquing operation to be a line break or an activity that required isolation of hazardous energy. The company thought since it was not opening the line, lockout/tagout was not needed. Therefore, the company did not assess the risk of the task or implement precautions. Such precautions might have restricted a second contractor from being in the area.
Simultaneous operations — The company did not have a policy/procedure for evaluating simultaneous operations (SIMOPs). A pipefitter crew was working on one end of the 19x38 foot platform while a pipe insulation crew was working on the opposite end of the platform. The company did not evaluate the risks associated with the simultaneous tasks in near proximity. Also, the pipe insulation crew had insufficient personal protective equipment and was unnecessarily exposed to the HCl release created by the torquing operation.
Limited means of egress — The fifth-floor platform was equipped with only a single point of egress. This was based on building codes for an “unoccupiable equipment platform.”

CSB recommendations

The Board made 10 recommendations. Note that CSB urges OSHA to add or modify regulations to require employers to coordinate SIMOPs, including:

Identifying potential SIMOPs and hazardous interactions,
Implementing safeguards to allow for safe SIMOPs,
Communicating between SIMOPs, and
Involving emergency response personnel in planning/coordinating SIMOPs.

CSB suggests OSHA also issue guidance for SIMOPs. In addition, the investigation report calls on the International Code Council and the National Fire Protection Association to address conditions which require multiplemeans of egress from elevated structures containing hazardous materials.

Key to remember

CSB urges OSHA to add or modify regulations to require employers to coordinate SIMOPs. The Board also calls on others to address the need for multiplemeans of egress on elevated structures.

2024-11-08T06:00:00Z

Trench, fall fatalities down due to OSHA enforcement efforts

Worker deaths from falls and trench collapses, two of the leading causes of death among construction workers, have significantly decreased due to OSHA’s enforcement efforts.

OSHA investigated 826 fatal injuries in fiscal year (FY) 2024, down from 928 in the previous year. Not including Covid-related deaths, this is the lowest number of worker deaths investigated by the agency since FY 2017.

Enforcement efforts include the agency’s National Emphasis Program on Falls, which saw a decrease in fatal falls from 234 to 189, almost a 20 percent decrease. Preliminary data from state OSHA programs indicates more than a 15 percent decrease in worker deaths.

Worker deaths in trench collapses decreased from 39 in 2022 to 15 in 2023, and for calendar year 2024, there have only been 12. These decreases follow intensive outreach and education by OSHA and industry partners, as well as state plans’ “zero tolerance” policy for unprotected trenches.

Information about OSHA’s emphasis programs as well as resources to help employers identify and correct hazards, improve safety and health programs, and remain in compliance can be found on OSHA’s website.

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2024-11-12T06:00:00Z

Countdown to OSHA’s infectious diseases proposal

Here we go! The long-awaited Infectious Diseases proposed rule reached the Office of Management and Budget (OMB) on November 8! That means we “could” see this proposal appear in the Federal Register by January. However, you don’t have to wait until then to know what’s in it. Compliance Network has the inside track on what will be in this one, if published!

The rulemaking would not replace but supplement the existing Bloodborne Pathogens standard. Instead of bloodborne diseases, the new rule would offer protections from infectious agents transmitted by contact, droplet, and airborne routes. Examples include methicillin-resistant Staphylococcus aureus (MRSA), norovirus, influenza, and tuberculosis.

How will this play out?

When this administration began, tackling COVID-19 and other infectious diseases took priority from day one. Given that the end of this administration is coming on January 20, it may choose to speed up its review of this rule, which otherwise would take 90 to 120 days.

The OMB considers alternatives and scrutinizes costs and benefits. Sometimes the office meets with stakeholders as it considers a rule. Once OMB gives the “okay,” OSHA can publish the proposal in the Federal Register.

If this administration fails to approve the proposal, the OMB of the next administration decides whether to give the nod. Even if approved before January 20, if the proposal does not appear in the Federal Register before then, the next administration can prevent it from reaching the Federal Register until it has a chance to review it.

Regardless, the proposal’s regulatory text, if issued in the Federal Register, would not take effect. Only a final rule can require employers to act. Yet, a published proposal is fair game for any administration down the line to pick up, analyze the comments, and publish a final rule.

Which employers would be covered?

According to OSHA, the rulemaking is intended to protect workers who perform tasks that routinely expose them to infectious diseases. This means it would be applicable to biomedical labs and settings where any worker provides healthcare services or handles contaminated materials or human remains. Settings potentially include:

Clinics embedded in a workplace or jobsite,
Hospitals and physicians’ offices,
Emergency medical services,
Specialty ambulatory care,
Home healthcare and long-term care facilities,
Services that handle healthcare laundry or medical waste,
Services that reprocess medical equipment,
Biomedical labs, and
Funeral homes.

Protections would be provided for workers that perform certain job tasks. These involve exposure to patients, clients, residents, contaminated materials, human remains, or infectious agents.

Key elements OSHA’s considering

The proposal would provide several major regulatory provisions:

Workplace infection control plan (WICP), including hazard identification and policies/procedures;
Recordkeeping;
Reporting any fatalities/hospitalizations to OSHA;
Multi-employer responsibilities (e.g., construction work inside a healthcare facility);
Costs for which employers are responsible; and
Services available to workers at reasonable times/places.

The “policies/procedures” provision would cover:

Screening and management of people, contaminated materials, and human remains;
Cleaning, disinfection, and sterilization;
Personal protective equipment;
Engineering controls like ventilation;
Employer support of worker vaccination;
Worker medical management;
Increased community transmission, outbreaks, and releases; and
Worker training.

When an employer is engaged in construction inside covered settings, OSHA says:

The employer that operates/controls the covered setting would provide the construction employer with information to ensure construction workers are not exposed to sources of an infectious agent; and
Based on the shared information, the construction employers would be obligated to protect their workers under the existing 29 CFR 1926 Subpart C.

Sneak peek at the proposed language

The Infectious Diseases rulemaking has been on OSHA’s to-do list since the year 2010. That means we are not totally in the dark about what’s planned for this rulemaking.

A small business panel met in 2014 to review the agency’s 38-page draft regulatory text. However, at the time, the panel issued a report voicing concerns. In fact, the report resulted in a general recommendation that OSHA not issue a proposed rule on infectious diseases until the agency assessed information on the risk.

On April 24, 2024, OSHA presented a summary and shared a background document for the Infectious Diseases proposal at an Advisory Committee on Construction Safety and Health (ACCSH) meeting. The committee gave OSHA a unanimous recommendation to publish the proposed rule. However, ACCSH did so on the condition that OSHA make clear in the rule what information host employers must share with contractors. That information would relate to infectious disease hazards and controls associated with a contractor’s work area.

Key to remember

The Infectious Diseases proposal reached OMB on November 8. We “could” see it published by January, and Compliance Network has a good idea what will be in it.

2024-11-07T06:00:00Z

Understanding how active shooters plan attacks could help stop them

The FBI has conducted extensive studies on active shooter motivation and planning. Since more than half of shooters documented their plans to attack, these studies identified some potential warning signs. They also showed that most attackers go through several phases, highlighting why early intervention is key to preventing attacks.

Motivation

An FBI study of 160 incidents found that 80 percent of active shooters had a real or perceived grievance. Often, the shooter wanted revenge for alleged mistreatment or unfairness. In those cases, the primary target was someone known to the attacker. Unfortunately, most victims were bystanders who happened to be in the wrong place at the wrong time. The most common motivations included:

Personal, such as divorce, financial or legal problems, or conflicts with family or coworkers;
Employment related, such as a recent termination; and
General hatred, such as racism or religious bias.

Active shooter events can appear random when the attacker has no relationship to the target (such as a shopping mall). However, when individuals attack their current or former place of employment, they often have an injustice motive coupled with a specific target.

Employers should watch for employees who blame others for their problems, get into confrontations with coworkers, and/or seem to be contemplating suicide (which suggests extreme despair).

Planning phases

More than half of the incidents studied by the FBI involved potentially visible warning signs such as journals or social media posts. Understanding the planning phases may help employees better identify warning signs and realize the importance of early reporting. Active shooters tended to go through five phases:

Fantasizing about the attack, whether daydreaming, writing journals, posting on social media, or talking to friends. Identifying and reporting these warnings can allow for intervention.
Planning who to kill and what methods to use. Most attackers spent less than two months planning.
Preparing by gathering equipment and weapons, as well as surveilling the location. More than half the shooters studied spent less than one week in the preparation phase.
Approaching the target, which may take only moments, though some attacks were stopped as the attacker approached the target.
Initiating the attack.

Understanding these stages and timelines can help highlight the importance of early reporting. The fantasy and planning stages can last months and could include expressions of rage about being wronged, making threats, writing manifestos, or making lists of equipment. Reporting concerns at this stage allows more time for intervention.

At the third preparation stage, warning signs include obtaining weapons and tactical gear, training with weapons, acquiring chemicals or bomb-making material, surveilling targets, or warning friends to avoid a location on a particular day. In this phase, the shooter could be mere days from starting the attack.

Check out our article My experience during an active shooter simulation for a firsthand account from an employee who participated in an active shooter training event in the workplace.

Understanding the five phases may help coworkers or family members recognize red flags. Further, knowing that the timeline to an attack tends to shorten with each phase should encourage immediate reporting. By the time an active shooter reaches the third preparation phase, an attack could be imminent and delaying a report of concerns for even one day could cost lives.

Key to remember: Employees who understand active shooter planning phases and warning signs should recognize the importance of early intervention. Once the attacker begins gathering equipment, an attack may be imminent.

2024-11-04T06:00:00Z

First aid and OSHA recordkeeping: What you need to know!

When an employee is injured at work, it often raises the question: is this incident recordable? One factor in determining this is whether the injured employee received medical treatment beyond first aid. It's the employer's responsibility to figure out if the injury or illness involved such treatment. But what exactly qualifies as "first aid"?

How does OSHA define first aid for recordkeeping purposes?

In a nutshell, OSHA defines first aid as immediate, basic medical care given right after an injury happens, usually at the place it occurred. This care is typically a one-time, short-term treatment that doesn't require advanced technology or extensive training to provide. While this is a broad definition, OSHA further clarifies in its regulations what exactly constitutes first aid.

According to OSHA's regulation 1904.7(b)(5)(ii), "first aid" includes:

Using over-the-counter medication at non-prescription strength.
Administering tetanus shots.
Cleaning, flushing, or soaking skin wounds.
Using wound coverings like bandages, Band-Aids, gauze pads, butterfly bandages, or steri-strips.
Applying hot or cold therapy.
Using non-rigid support like elastic bandages, wraps, or non-rigid back belts.
Using temporary immobilization devices for transporting an accident victim, like splints, slings, neck collars, and back boards.
Drilling a fingernail or toenail to relieve pressure or draining fluid from a blister.
Using eye patches.
Removing foreign bodies from the eye using only irrigation or a cotton swab.
Removing splinters or foreign material from areas other than the eye by irrigation, tweezers, cotton swabs or other simple means.
Using finger guards.
Using massages.
Drinking fluids for relief of heat stress.

When does OSHA require an injury/illness to be recorded?

An injury or illness must be recorded on OSHA’s form 300 if it meets the following criteria including:

Is work-related; and
Is a new case; and
Meets one or more of the general recording criteria of 29 CFR 1904.7.

According to 1904.7(a), a work-related injury or illness must be recorded if it results in one or more of the following:

Death.
Days away from work.
Restricted work or transfer to another job.
Medical treatment beyond first aid.
Loss of consciousness.
A significant injury or illness diagnosed by a physician or other licensed healthcare professional.

Key to remember: The line between first aid and medical treatment can be blurry, but OSHA's regulation provides a complete list of what constitutes first aid for recordkeeping purposes.

2023-11-16T06:00:00Z

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

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

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

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

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

About ANSI MH16.1

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

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

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

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

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

Other considerations

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

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

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

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

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

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

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