New Limited Quantity Rules to Phase-out Consumer Commodities Posted on February 21, 2012 by James

If you ship limited quantities of hazmat, including consumer commodities, it’s important to learn the new procedures, because the DOT has already begun phasing out the old procedures. The phase-out period is planned for the end of next year. Shippers need to make sure they know how the new rules will affect their shipments, as well as ensure their employees are properly trained.

Why are there new limited quantity rules?
The new rules for shipping limited quantities are based on harmonized international standards, and their full adoption is directed at further smoothing international commerce. The new markings for limited quantities are language neutral to eliminate any confusion caused by the “LTD QTY” markings.

Part of the DOT’s harmonization effort is eliminating the ORM-D and ORM-D AIR classifications. For those of you who ship internationally, getting rid of the ORM-D class and marking will eliminate hassle from customs agents. Having a single packaging method for domestic and international shipments will save time and money in the long run. Outside the United States, where there never was an ORM-D class, the adoption of uniform standards for limited quantities and exclusion from shipping paper requirements actually opens up options for businesses.

What is changing under the new limited quantity rules?
The biggest change is a regulatory relief that will affect the shipping papers of limited quantity shipments being sent by ground. The second major change is a new package marking to replace the current UN# in a diamond. Lastly, the DOT is phasing out the ORM-D packaging classification.

How will air shipments of limited quantities be affected?

Under the new rules, there are more complicated material restrictions, quantity limits, and packaging requirements for air shipments than for other modes. The big difference between air and ground shipments under the new rules is that a package going by air must display the “Y” variation of the limited quantity symbol. The “Y” indicates that the package is eligible for transport by air, but may be used by other modes as well, as long as the package meets the requirements for air transport. [49 CFR 173.27]

What are the compliance deadlines for the new limited quantity rules?
Shippers were allowed to start using the new limited quantity packing rules at the beginning of 2011, and the international regulations (IMDG, ICAO, IATA, etc.) have already switched over to the new ways. For domestic shipments in the United States, shippers can continue to use the old markings for air shipments until the end of 2012. The old markings for ground and vessel shipments remain in place until the end of 2013.

Where can I get training on the new limited quantity rules?
Lion Technology will be hosting a special live web seminar on the new limited quantity packing rules on March 15, 2012. During the seminar, we will discuss the critical elements of the rules, best management practices to ease your company’s transition, and essential deadlines for compliance.

For Further Reference: 76 FR 3308, January 19, 2011, “Hazardous Materials: Harmonization with the United Nations Recommendations…”

Tier II Reporting: LEPCs and SERCs Posted on February 14, 2012 by James

Yes, it’s that time again! The annual hazardous chemical inventory report required under the EPCRA rules at 40 CFR 370 is due on March 1, 2012. The inventory reporting rule applies to any facility that is required to prepare or have available a material safety data sheet (MSDS) for a hazardous chemical under the OSHA hazard communication rule at 29 CFR 1910.1200 [40 CFR 370.20(a)].

All hazardous chemicals that were present at your facility at or above their threshold quantities during the 2011 calendar must be included. For any OSHA hazardous chemical, the reporting threshold is 10,000 pounds or more present at one time during the year [40 CFR 370.1(b)(4)].

For extremely hazardous substances (EHS), the reporting threshold is either 500 pounds or the threshold planning quantity (TPQ), whichever is lower, present at one time [40 CFR 370.1(b)(1)]. There are separate reporting thresholds for gasoline and diesel fuels [40 CFR 370(1(b)(2)-(3)].

Your annual report must be submitted to your Local Emergency Planning Committee (LEPC), State Emergency Planning Commission (SERC), and local fire department. If you are submitting the Tier II form, the EPA has developed Tier2 Submit software to help facilities prepare an electronic report. If your state accepts this format, you may follow the directions on EPA’s Tier II Chemical Inventory Reports page. This site also provides printable forms for facilities using the Tier I reporting form.

Who am I sending my Tier II reports to, and what happens to this information?

LEPC stands for Local Emergency Planning Committee. There is one LEPC for each of the more than 3,000 designated local emergency planning districts. According to EPA, LEPCs must include (at a minimum) members from:

  • Elected state and local officials;
  • Police, fire, civil defense, and public health professionals;
  • Environment, transportation, and hospital officials;
  • Facility representatives; and
  • Representatives from community groups and the media.

The EPA maintains a searchable online database of LEPCs and a comprehensive list of SERCs on their site.

According to a 2008 survey conducted by EPA, “The majority of responding LEPCs (75.6%) use Tier I and II data for emergency planning purposes (e.g., hazard analysis and identification of risk areas) and emergency response (71.0%). 39.4% use the data to make preparedness recommendations to local governments, and 12.0% use the data to make hazard reduction recommendations to industry.”

Federal Register Prints Flexibility Agendas Posted on February 14, 2012 by James

Yesterday, the Federal Register finally published the Fall 2011 Regulatory Flexibility Agendas, as required by the Regulatory Flexibility Act (5 USC 602). Compared to the Unified Agenda published last month (and discussed ), the Flexibility Agendas only include rules that have a significant economic impact on a substantial number of small entities (SEIOSNOSE) or are otherwise identified as significant rulemakings. Ever since the OMB took the lead on managing the agendas from the Federal Register, there hasn’t been much in the Flexibility Agendas that isn’t already in other sources. Department of Transportation Flexiblity Agenda (Fall 2011): PHMSA expects to continue working on new rules for lithium battery transportation, and to issue a set of miscellanous cleanup amendments later this year.

Here are links to the flexibility agendas for agencies in our area of EHS, and a few notes:

Question of the Week: Hearing Conservation Posted on February 07, 2012 by James

Q. We have a lot of machinery that give off noise. How do we know if we need some type of hearing loss program?

A. The Occupational Safety and Health Administration (OSHA) protects workers in the workplace from many hazards. One of the hazards that is often overlooked by employers is noise exposure, because you cannot see it. However, long-term exposure to loud or high pitched noise can cause irreversible damage to employees, so OSHA created the Occupational Noise Exposure standard found at 29 CFR 1910.95.

Without getting into any numbers yet, some good indicators that noise levels in your workplace have exceeded “acceptable” limits include, but are not limited to, the following:

  • It is necessary to shout in order to hear three feet away,
  • Noise levels seem louder than busy city traffic,
  • After exposure, you notice muffling or softening of sounds,
  • After work shift ends, it is necessary to increase the volume of the radio or TV to a level too loud for others, or
  • You experience tinnitus (a loud ringing or buzzing noise that continues after the noise stops).

OSHA requires noise exposure to be measured in decibels according to the “A scale” (dBA). The dBA scale most closely mimics the scale of human hearing and is measured with a device that has a damper on the meter needle. This ensures that readings are averaged out when sound levels are uneven.

Depending on how many hours an employee is exposed to a given noise, they will have different permissible exposure limits (PEL). Regardless of PELs, employers must administer a hearing conservation program whenever employee noise exposures equal or exceed the “action level.” The action level is an 8-hour, time-weighted average (TWA) constant sound level of 85 dBA, or equivalent dose. [29 CFR 1910.95(c)]

The TWA is the daily “amount” of noise that the employee is exposed to, not a single exposure, and is affected by how loud the noise is, how close the employee is to the source of the noise, and how long the employee is exposed. It is important to note that this noise level should be calculated without regard to protection offered by personal protective equipment (such as ear plugs or ear muffs).

The regulations for PELs and measuring TWAs can be found in Appendix A of 29 CFR 1910.95

If it is determined that you need a hearing conservation program, it must include the following elements:

  • Employee monitoring,
  • Employee notifications,
  • An audiometric testing program,
  • Hearing protectors,
  • Training,
  • Employee access to information, and
  • Recordkeeping.

If you or anyone at your facility requires more information on OSHA’s standards for noise exposure, we recommend taking Lion’s Hearing Conservation online training program

References: 29 CFR 1910.95—Occupational Noise Exposure Standard
OSHA’s Safety and Health Topics: Occupational Noise Exposure

FAA Reauthorization Imminent: New Rules for Lithium Batteries May be Affected Posted on February 02, 2012 by James

After years of temporary extensions, the House and Senate have agreed on legislation to reauthorize and make improvements to the Federal Aviation Administration (FAA).

Among the many provisions in the conference report, Congress intends to curtail the Department of Transportation from creating or enforcing any regulations that restrict the transportation of lithium batteries by air more stringently than existing ICAO regulations. See below.

SEC. 828. AIR TRANSPORTATION OF LITHIUM CELLS AND BATTERIES.

  • (a) IN GENERAL.—The Secretary of Transportation, including a designee of the Secretary, may not issue or enforce any regulation or other requirement regarding the transportation by aircraft of lithium metal cells or batteries or lithium ion cells or batteries, whether transported separately or packed with or contained in equipment, if the requirement is more stringent than the requirements of the ICAO Technical Instructions.
  • (b) EXCEPTIONS.—
    • (1) PASSENGER CARRYING AIRCRAFT.—Notwithstanding subsection (a), the Secretary may enforce the prohibition on transporting primary (nonrechargeable) lithium batteries and cells aboard passenger carrying aircraft set forth in special provision A100 under section 172.102(c)(2) of title 49, Code of Federal Regulations (as in effect on the date of enactment of this Act).
    • (2) CREDIBLE REPORTS.—Notwithstanding subsection (a), if the Secretary obtains a credible re port with respect to a safety incident from a national or international governmental regulatory or investigating body that demonstrates that the presence of lithium metal cells or batteries or lithium ion cells or batteries on an aircraft, whether transported separately or packed with or contained in equipment, in accordance with the requirements of the ICAO Technical Instructions, has substantially contributed to the initiation or propagation of an onboard fire, the Secretary—
      • (A) may issue and enforce an emergency regulation, more stringent than the require ments of the ICAO Technical Instructions, that governs the transportation by aircraft of such cells or batteries, if that regulation—
        • (i) addresses solely deficiencies ref erenced in the report; and
        • (ii) is effective for not more than year; and
      • (B) may adopt and enforce a permanent regulation, more stringent than the require ments of the ICAO Technical Instructions, that governs the transportation by aircraft of such cells or batteries, if—
        • (i) the Secretary bases the regulation upon substantial credible evidence that the otherwise permissible presence of such cells or batteries would substantially contribute to the initiation or propagation of an on board fire;
        • (ii) the regulation addresses solely the deficiencies in existing regulations; and
        • (iii) the regulation imposes the least disruptive and least expensive variation from existing requirements while adequately addressing identified deficiencies.

According to the House Transportation & Infrastructure Committee, the full House and Senate expect to vote on the measure before the FAA’s current short-term funding extension expieres on February 17.

PHMSA to Hold Public Meeting on Special Permits & Approvals Posted on February 02, 2012 by James

The Pipeline and Hazardous Materials Safety Administration (PHMSA) will hold a public meeting to discuss the Special Permit and Approval program on February 29, 2012, in Washington D.C. Specifically, the meeting will discuss PHMSA’s work on developing an automated system for quantitatively assessing applicants fitness for Special Permits & Approvals. This meeting is the regulated community’s chance to hear from the agency and to given them your input on the issue.

Fall 2011 Regulatory Agendas: Occupational Safety and Health Posted on January 31, 2012 by James

Twice each year, the departments and independent agencies of the Federal government publish public agendas of their rulemaking activities. These semiannual agendas both review recent new rules and announce upcoming rule activities. While each agency and department creates its own agenda, the agenda system as a whole is organized by the Office of Management and Budget under the Regulatory Flexibility Act, Administrative Procedure Act, and in conformance with several executive orders.

Traditionally, the agendas are published in the Federal Register, but since 2007, the Internet has been the primary medium of distribution. On Friday, January 20, 2012, the Regulatory Information Service (a sub-unit of the OMB) softly published the “Fall 2011″ regulatory agenda on its Web site. As the Federal Register has yet to publish any notice of its own on these agendas, let’s get right to Lion’s semiannual review of the EHS agencies agendas.

The Occupational Safety and Health Administration (OSHA), under the Department of Labor has several items scheduled for development this year.

Injury and Illness Prevention Program (RIN: 1218-AC48)
OSHA, having received substantial data on reductions in injury and illness in the workplace, is developing a rule requiring employers to implement an Injury and Illness Prevention Program. The “I2P2,” as it is sometimes referred to, will take the place of the voluntary Safety and Health Program Management Guidelines published in 1989. OSHA believes data from similar industry and international initiatives show that implementing an Injury and Illness Prevention Program will dramatically reduce the number and severity of workplace injuries in the U.S. This program is still in a prerule stage; meetings began on this issue in June 2010, and are slated to continue in early 2012, when OSHA will consider the potential impact on small businesses under its Small Business Regulatory Fairness Act.

Standards Improvement Program IV (RIN: 1218-AC67)
In an attempt to eliminate or revise duplicative, unnecessary, and inconsistent health and safety standards, OSHA has proposed its fourth Standards Improvement Project. The Agency’s Standards Improvement Project “Phase I” was published in June, 1998 at 63 FR 33450, followed by Phase II in January, 2005 (70 FR 1111) and Phase III on June 8, 2011 (76 FR 33590). The focus of Phase IV will be to identify unnecessary or duplicative provisions or paperwork requirements in the construction standards at 29 CFR 1926, and will initiate the rulemaking process by publishing a Request for Information in March 2012.

Review/Look back of OSHA Chemical Standards (RIN: 1218-AC74)
OSHA is working to update its Permissible Exposure Limits (PELs) to protect workers from exposure to harmful chemicals in the workplace. The Agency’s original PELs were adopted in 1971 (section 6(a) of the OSH Act), and since few of them have been updated. Industry, labor, and professional occupational safety and health organizations agree that many of these limits are outdated, and newer data indicates that occupational health and safety risks exist for many chemicals at levels below OSHA’s current PELs. OSHA published a rule in 1989 lowering PELs for over 200 chemicals, and adding PELs for 164 additional chemicals; this rule, however, was challenged and ultimately vacated due to deficiencies in OSHA’s analysis. Stakeholder and web forum meetings have been held to discuss means to address outdated PELs, and OSHA is developing a Request for Information which they plan to have ready in August 2012.

Occupational Exposure to Crystalline Silica (RIN: 1218-AB70)
Workers in a wide range of industries are exposed to crystalline silica, a known human carcinogen. Long term exposure (10 years or more) to crystalline silica has been shown to result in chronic silicosis, an occupation disease that is ultimately fatal. OSHA, industry, and worker groups have recognized the need for a comprehensive standard regarding exposure to crystalline silica, as current Permissible Exposure Limits (PELs) in many industries – especially shipyards and construction – are derived from obsolete methods of analysis. OSHA has attempted to address this problem through non-regulatory means, including a Special Emphasis Program on silica in 1997, and dissemination of guidance information through the Agency’s website. A Small Business Regulatory Enforcement Fairness Act report on this proposed rule was completed in 2003. A Peer Review of Health Effects and Risk Assessment was initiated in 2009, and finished in 2010. A notice of proposed rulemaking is slated to appear in February 2012.

Improve Tracking of Workplace Injuries and Illnesses (RIN: 1218-AC49)
OSHA is proposing modifications to 29 CFR part 1904.41, to update and modernize its occupational injury and illness reporting system. By expanding its legal authority to collect and share injury and illness information required under part 1904, OSHA hopes to enable more efficient and timely collection of data, and improve the accuracy and availability of records and statistics. Stakeholder Meetings were held on this issue in May 2010, and a notice of proposed rulemaking is scheduled for release in February 2012.

Occupational Injury and Illness Recording and Reporting Requirements—NAICS Update and Reporting Revisions (RIN: 1218- AC50)
OSHA has proposed revising Appendix A to Subpart B of its Injury and Illness Recording and Reporting regulation – a list of industries which are partially exempted from maintaining records of occupational injuries and illnesses. The industries currently included in Appendix A to Subpart B are granted partial exemption because they are classified as “low-hazard industries” by the Standard Industrial Classification (SIC) system. The SIC system was created in 1937, and now is being phased out by most regulatory bodies. Today the North American Industry Classification System, or NAICS code is the preferred method for classifying industries. The proposed rule change will reflect this preference, as well as update Appendix A to include more recent injury and illness data. A notice of proposed rulemaking first appeared in June 2011 (76 FR 36414), and the initial comment period ended in September of that year. The record was reopened a week later on September 28, 2011 (76 FR 59952), the 2nd comment period ended in October. OSHA expects to complete its analysis of the comment docket by May of 2012.

Walking Working Surfaces and Personal Fall Protection Systems (Slips, Trips, and Fall Prevention) (RIN: 1218-AB80)
Since 1990, when OSHA first proposed a rule addressing slip, trip, and fall hazards, new technologies have become available to protect employees from these hazards. The Agency is working to update the requirements for personal fall protection systems to reflect the current technology. The original notice of proposed rulemaking appeared in April 1990 (55 FR 13360), and a 2nd notice of proposed rulemaking appeared in May 2010 (75 FR 28861). A public hearing was held in January 2011, and final action is expected from OSHA in October 2012.

Hazard Communication (RIN: 1218-AC20)
OSHA will take action this year to align its Hazard Communication Standard with the Global Harmonization System (GHS) for classifying and labeling chemicals. The Agency believes this change will provide for consistent information and definitions of hazardous chemicals internationally, address industry concerns for a standardized MSDS format, and increase understanding by using standardized pictograms and harmonized hazard statements. A notice of proposed rulemaking appeared in September 2009 (74 FR 50279), and final action is expected from OSHA in February 2012.

Fall 2011 Regulatory Agendas: Environmental Protection Posted on January 31, 2012 by James

Twice each year, the departments and independent agencies of the Federal government publish public agendas of their rulemaking activities. These semiannual agendas both review recent new rules and announce upcoming rule activities. While each agency and department creates its own agenda, the agenda system as a whole is organized by the Office of Management and Budget under the Regulatory Flexibility Act, Administrative Procedure Act, and in conformance with several executive orders.

Traditionally, the agendas are published in the Federal Register, but since 2007, the Internet has been the primary medium of distribution. On Friday, January 20, 2012, the Regulatory Information Service (a sub-unit of the OMB) softly published the “Fall 2011″ regulatory agenda on its Web site. As the Federal Register has yet to publish any notice of its own on these agendas, let’s get right to Lion’s semiannual review of the EHS agencies agendas.

The Environmental Protection Agency is responsible for enforcing many of our nation’s environmental laws. The Agency’s official statement of priorities, part of the semiannual agenda, is available here, and a summary of a few significant items follows.

Toxic Substances Control Act

Lead; Renovation, Repair, and Painting Program for Public and Commercial Buildings (RIN: 2070-AJ56)
Section 402(c)(3) of the Toxic Substances Control Act (TSCA) requires EPA to regulate renovation or remodeling activities in target housing (most pre-1978 housing), pre-1978 public buildings, and commercial buildings that create lead-based paint hazards. On April 22, 2008, EPA issued a final rule to address lead-based paint hazards created by renovation or remodeling activities in target housing and child-occupied facilities built before 1978. This new rulemaking will address renovation or remodeling activities in commercial and public buildings as required by Section 402(c)(3) of TSCA. EPA is currently under a court order to publish a proposal by July 15, 2012.

Mercury; Regulation of Use in Certain Products (RIN: 2070-AJ46)
Having conducted a preliminary analysis, the EPA is considering banning the use of mercury in switches, relays/contactors, flame sensors, and button cell batteries. The earliest the EPA may publish a proposal is October 2012.

Mercury; Incorporation of Revised ASTM Standards into EPA Regulations That Provide Flexibility in the Use of Alternatives to Mercury-containing Thermometers (RIN: 2070-AJ51)
As part of an overall phase out of mercury use, the EPA is proposing to incorporate the most recent versions of the American Society for Testing and Materials (ASTM) international standards (ASTM standards) into EPA regulations that provide flexibility to use alternatives to mercury-containing industrial thermometers. The EPA already proposed a rule last January (76 FR 2056) and had expected to finalize this rule in December 2011.

Mercury; Significant New Use Rule; Elemental Mercury Used in Barometers, Manometers, and Hygrometers/Psychrometers (RIN: 2070-AJ71)
Because the use of elemental mercury in barometers, manometers, and hygrometers/psychrometers has been almost entirely phased out, the EPA will now consider the resumption of manufacture, import, or processing of any mercury-containing devices to be a significant new use under TSCA. A proposal was published on May 6, 2011 (76 FR 26225), and the EPA may publish a final rule by May 2012.

Resource Conservation and Recovery Act


Revisions to the Export Requirements of the Cathode Ray Tube (CRT) Rule (RIN: 2050-AG68)
The Agency is considering a proposal to revise the cathode ray tube (CRT) final rule published on July 28, 2006 (71 FR 42927) to address certain implementation concerns. Considered are adding a definition of “exporter,” which will clarify the liabilities of intermediaries, such as brokers, in fulfilling the export-related requirements of the rule, and including additional items to the notification required for CRTs exported for reuse. These requirements will make it easier to enforce the export requirements of the rule and will enable the Agency to obtain additional information on the export of this class of used electronics. The Agency expects to publish an official proposal in May 2012.

Revising Underground Storage Tank Regulations–Revisions to Existing Requirements and New Requirements for Secondary Containment and Operator Training (RIN: 2050-AG46)
The Underground Storage Tank (UST) regulations were first promulgated in 1988, primarily to prevent releases from retail petroleum marketers (gas stations) and other facilities into the environment. These regulations have reduced the incidents of contamination. However, there is a need to revise the regulations to incorporate changes to the UST program from the Energy Policy Act of 2005, as well as to update outdated portions of the regulations due to changes in technology since the 1980s. Through this action, EPA will ensure Federal enforceability of the EPAct provisions across the country. EPA will also use knowledge of the program gained over the last 20 years to update and revise the regulations to make targeted changes to improve implementation and prevent UST releases. The Agency published a notice of proposed rulemaking on November 18, 2011 (76 FR 71708), the comment period is open until February 16, 2012, and the date of a final action is to be determined.

Modifications to RCRA Rules Associated With Solvent-contaminated Industrial Wipes (RIN: 2050-AE51)
In 2003 (68 FR 65586), EPA proposed to modify the Resource Conservation and Recovery Act (RCRA) hazardous waste regulations for management of solvent-contaminated industrial wipes. EPA proposed to conditionally exclude wipes that are disposed of from the definition of hazardous waste and to conditionally exclude laundered wipes from the definition of solid waste. If finalized, this regulation will impact the management of two types of solvent-contaminated wipes: (1) wipes disposed of in land disposal units or by combustion after use, and (2) wipes that are laundered after use to remove the solvent and then are used again. According to the Agenda, the Agency anticipates a final action by June of 2012.

Hazardous Waste Technical Corrections and Clarifications Rule (RIN: 2050-AG52)
On March 18, 2010 (75 FR 13066), EPA published a Direct Final Rule (Hazardous Waste Technical Corrections and Clarifications Rule) that promulgated a number of amendments to the hazardous waste regulations to correct existing errors in the hazardous waste regulations that occurred over time as a result of typographical errors or incorrect citations to paragraphs and other references. On June 16, 2010, all of the amendments to the Direct Final Rule went into effect, except for six amendments that were withdrawn (June 4, 2010; 75 FR 31716) because adverse comments were received. The final rule will address two of the six withdrawn amendments and may be published in early 2012.

Clean Water Act

Stormwater Regulations Revision to Address Discharges from Developed Sites (RIN: 2040-AF13)
This proposed action would establish requirements for, at minimum, managing stormwater discharges from newly developed and re-developed sites, to reduce the amount of pollutants in stormwater discharges entering receiving waters by reducing the discharge of excess stormwater. EPA may take other actions to implement improved control of stormwater pollution and more efficient rainwater use. The Phase I and Phase II MS4 regulations might also be combined and amended and may include provisions for better managing existing discharges. As part of a judicial settlement agreement, the EPA is obligated to publish a final rule by November 19, 2012.

National Pollutant Discharge Elimination System (NPDES) Application and Program Updates Rule (RIN: 2040-AF25)

EPA plans to propose regulations that would update specific elements of the existing National Pollutant Discharge Elimination System (NPDES) in order to better harmonize regulations and application forms, improve permit documentation and transparency, and provide clarifications to the existing regulations. In this effort, EPA plans to address application, permitting, monitoring, and reporting requirements that have become obsolete or outdated due to programmatic, technical, or other changes that have occurred over the past 35 years. The EPA’s current timetable calls for a proposal in March 2012 and a final rule in October.

Effluent Guidelines and Standards for the Dental Point Source Category (RIN: 2040-AF26)
EPA is developing pretreatment standards for pollutant discharges from dental offices. When dentists place or remove amalgam fillings, mercury and other contaminants are flushed into the sewer. Dental amalgam contains mercury and other metals that have the potential to pass through or interfere with municipal wastewater treatment at Publicly Owned Treatment Works (POTWs). EPA’s technology assessment will focus on best management practices, such as use of amalgam separators, as a regulatory requirement. The EPA’s current timetable calls for a proposal in March 2012 and a final rule by next January.

Criteria and Standards for Cooling Water Intake Structures (RIN: 2040-AE95)
Section 316(b) of the Clean Water Act (CWA) requires EPA to ensure that the location, design, construction, and capacity of cooling water intake structures reflect the best technology available (BTA) for minimizing adverse environmental impacts. Pursuant to a settlement agreement, the EPA is under court order to publish new final rules for certain facilities no later than July 12, 2012.

Guidelines Establishing Test Procedures for the Analysis of Pollutants Under the Clean Water Act; Analysis and Sampling Procedures (RIN: 2040-AF09)
This regulatory action would amend “Guidelines Establishing Test Procedures for the Analysis of Pollutants” at 40 CFR Part 136 to approve test procedures (analytical methods) for use by testing laboratories for water monitoring. These test procedures are used to implement the NPDES program unless an alternate procedure is approved by a Regional Administrator. The regulation would also revise, clarify, and correct errors and ambiguities in existing methods and the water monitoring regulations. The EPA proposed these rules on September 23, 2010 (75 FR 58024) and expects to complete this rulemaking by the end of February 2012.

National Pollutant Discharge Elimination System (NPDES): Use of Sufficiently Sensitive Test Methods for Permit Applications and Reporting (RIN: 2040-AC84)
EPA is launching an effort to update specific elements of the existing NPDES regulations in order to provide clarifications related to the NPDES permit application and NPDES permit monitoring analytical detection level requirements. The EPA proposed these regulations on June 23, 2010 (75 FR 35712) and expects to finalize these rules any day now.

Clean Air

Prevention of Significant Deterioration (PSD) and Nonattainment New Source Review (NSR): Reasonable Possibility in Recordkeeping; Reconsideration (RIN: 2060-AP71)
The EPA is convening a proceeding for reconsideration of a final rule published in the Federal Register on December 21, 2007 (72 FR 72607). The subject rule was promulgated in response to a remand by the U.S. Court of Appeals for the District of Columbia Circuit in New York v. EPA, 413 F.3d 3 (D.C. Cir. 2005), in order to clarify the “reasonable possibility” recordkeeping and reporting standard under the New Source Review (NSR) program. After review of issues raised by the State of New Jersey by petition and letter, the EPA has decided to exercise its discretion to conduct a reconsideration of this final rule and will therefore be reopening the public comment period for the rule. The rule will remain in effect while the reconsideration proceeding is under way.

National Emission Standards for Hazardous Air Pollutants: Startup, Shutdown, and Malfunction Amendments to Part 63 Standards (RIN: 2060-AP96)
This action will amend regulations in the general provisions of regulations promulgated under the Clean Air Act (Subpart A of Part 63) that provide for or are related to an exemption from the requirement to comply with Clean Air Act section 112 emission standards during startup, shutdown, and malfunction (SSM) events. On December 19, 2008, in Sierra Club v. EPA, the United States Court of Appeals for the District of Columbia Circuit vacated the SSM. These general provisions are not specific to any source category and apply when incorporated into source category-specific standards. In addition, other subparts with similar provisions will be amended so that applicable standards will no longer have exceptions for sources that report malfunction conditions, to reflect the court vacatur. The EPA anticipates a notice of proposed rulemaking by March 2012.

Amendments to Delegation of Authority Provisions in the Prevention of Significant Deterioration Program (RIN: 2060-AQ55)
This amendment will be a policy update of a rule from several decades ago. It will amend the Part 52 Approval and Promulgation of State Implementation Plans, 1977 Clean Air Act Amendments to Prevention of Significant Deterioration (PSD) 52.21(u) Delegation of Authority. This rule will delete a section that restricts tribes from taking delegation of the PSD program. It will add tribes to Paragraph 2, along with states and local air pollution control agencies. These changes are intended to ensure that tribes are treated the same as states and locals and to enable direct delegation of New Source Review to tribes. This rule will also update paragraph numbering and an erroneous cross-reference to be consistent with the current program. The EPA already published a notice of proposed rulemaking on December 30, 2011 (76 FR 82234) and expects to complete a final rule by February 28, 2012.

Protection of Stratospheric Ozone: Listing of Substitutes for Ozone-depleting Substances–Fire Protection (RIN: 2060-AQ84)
This direct final action, scheduled for early 2012, would list as acceptable (subject to use restrictions) a substitute for ozone-depleting substances in the fire suppression and explosion protection sector under EPA’s Significant New Alternatives Policy (SNAP) Program. The SNAP Program evaluates substitutes for ozone-depleting substances and publishes lists of acceptable and unacceptable substitutes. The intended effect of the SNAP Program is to support the transition away from ozone-depleting substances through review of substitutes and their effects on human health and the environment.

National Emission Standards for Hazardous Air Pollutants (NESHAP) Risk and Technology Review (RTR) for the Mineral Wool and Wool Fiberglass Industries (RIN: 2060-AQ90)
The Maximum Achievable Control Technology (MACT) standard for Mineral Wool Production was promulgated on June 1, 1999, and the MACT for Wool Fiberglass Production was promulgated on June 14, 1999. The Clean Air Act requires EPA to evaluate the risk remaining to human health within eight years of promulgation of each MACT standard. Along with risk, the EPA is also required to review new technology in the industry that can reduce hazardous air pollutant (HAP) emissions from regulated sources in the industry and may consider costs under this technology review. EPA is addressing these Clean Air Act requirements under a combined risk and technology review (RTR). The EPA published a notice of proposed rulemaking on November 25, 2011 (76 FR 72770) and anticipates a final rule by July 2012.

Uniform Standards for Equipment Leaks and Ancillary Systems, Closed Vent Systems and Control Devices, Storage Vessels and Transfer Operations, and Wastewater Operations (RIN: 2060-AR00)
This action will develop and consolidate state-of-the-art uniform standards that will then become applicable when they are referenced in future regulatory actions, such as new and revised Control Technique Guidelines documents, NSPS technology reviews, and MACT Risk and Technology reviews for organic chemical processing industries. In addition to developing the uniform standards, EPA also expects to develop tools for the proper application of these uniform standards during rule development, including anticipated costs and pollutant emission reductions. The EPA expects to complete this rulemaking action by August 2012.

Reconsideration of the Prevention of Significant Deterioration and Nonattainment New Source Review (NSR): Aggregation (RIN: 2060-AP80)
In response to a petition from the National Resources Defense Council, the EPA is reconsidering the “Aggregation” rule that addressed when a source must combine (i.e., “aggregate”) nominally-separate physical and operational changes for the purpose of determining whether they are a single change and subject to review under the New Source Review (NSR) program. The EPA anticipates completing this action by April 2012.

Fall 2011 Regulatory Agendas: Hazardous Materials Safety Posted on January 31, 2012 by James

Twice each year, the departments and independent agencies of the Federal government publish public agendas of their rulemaking activities. These semiannual agendas both review recent new rules and announce upcoming rule activities. While each agency and department creates its own agenda, the agenda system as a whole is organized by the Office of Management and Budget under the Regulatory Flexibility Act, Administrative Procedure Act, and in conformance with several executive orders.

Traditionally, the agendas are published in the Federal Register, but since 2007, the Internet has been the primary medium of distribution. On Friday, January 20, 2012, the Regulatory Information Service (a sub-unit of the OMB) softly published the “Fall 2011″ regulatory agenda on its Web site. As the Federal Register has yet to publish any notice of its own on these agendas, let’s get right to Lion’s semiannual review of the EHS agencies agendas.

The Pipeline and Hazardous Materials Safety Administration (PHMSA), under the Department of Transportation (DOT), is responsible for regulating the nation’s hazardous material and pipeline safety laws. While the hazardous material program was not specifically called out in the DOT’s “Overview and Summary of Regulatory Priorities,” the Associate Administrator for Hazardous Materials Safety expects to work on several rulemaking dockets in 2012, including:

Hazardous Materials: Compatibility With the Regulations of the International Atomic Energy Agency (IAEA) (RIN: 2137-AE38)
On August 12, 2011 (76 FR 50332), PHMSA proposed amendments to the Hazardous Materials Regulations (HMR) requirements for the transportation of Class 7 (radioactive materials) based on recent changes contained in the International Atomic Energy Agency (IAEA) regulations. This rulemaking would more fully align the HMR with the international standards and would update, clarify, correct, and provide relief of certain regulatory requirements applicable to the transportation of radioactive materials. The comment period ended on November 10, 2011, and PHMSA expects to complete analyzing the comments by June 2012.

Hazardous Materials: Revisions to Requirements for the Transportation of Lithium Batteries (RIN: 2137-AE44)
Way back in January 2010 (75 FR 1302), PHMSA proposed amendments to the HMR to comprehensively address the safe transportation of lithium cells and batteries. After more than two years of delay, the Agency may publish a new proposal in May of this year.

Hazardous Materials: Miscellaneous Amendments (RIN: 2137-AE78)
This rulemaking would update and clarify existing requirements by incorporating changes into the Hazardous Materials Regulations (HMR) based on PHMSA’s own initiatives through an extensive review of the HMR and previously issued letters of interpretation.
Specifically, among other provisions, PHMSA would:

  • Provide for the continued use of approvals until final administrative action is taken, when a correct and completed application for approval renewal was received 60 days prior to expiration date;
  • Update various entries in the hazardous materials table and the corresponding special provisions;
  • Clarify the lab pack requirements for temperature-controlled materials; .
  • Correct an error in the HMR with regard to the inspection of cargo tank motor vehicles containing corrosive materials; and
  • Revise the training requirements to require that hazardous materials employers ensure their hazardous materials employee training records are available upon request to an authorized official of the Department of Transportation or the Department of Homeland Security.

PHMSA may publish a Notice of Proposed Rulemaking on this action in July 2012.

Hazardous Materials: Miscellaneous Amendments; Petitions for Rulemaking (RIN: 2137-AE79)
This rulemaking would address petitions that request minor changes to the Hazardous Materials Regulations (HMR) for purposes of clarifying the HMR or enhancing safety, while offering some net economic benefits. Among the petitions included in this rulemaking are:

  • P-1479–pertaining to manufacturer and third-party laboratory package markings;
  • P-1554–IBC material thickness standards;
  • P-1555–drop test requirements for small quantities of certain hazardous materials transported by air and vessel; and
  • P-1556–incorporating a special permit that allows the dangerous cargo manifest to be in locations designated by the master of the vessel besides “on or near the bridge” while the vessel is in port.

According to the Agenda, PHMSA intended to publish a proposed rule in January 2012.

Hazardous Materials: Incorporation of Certain Special Permits and Competent Authorities into the HMR (RIN: 2137-AE82)
This rulemaking would amend the Hazardous Materials Regulations (HMR) to incorporate provisions contained in certain widely used or longstanding special permits and competent authorities that have established safety records. Incorporating such provisions into the HMR is intended to provide wider access to the regulatory flexibility offered in the special permits and competent authorities. The adoption of the provisions would eliminate the need for numerous application and renewal requests. The special permits proposed to be added to the regulations here would allow:

  • The transportation of “Self-heating solid, organic n.o.s. (spent bleaching earth)” in sift-proof bulk packaging;
  • The use of regulated medical waste shipping names and markings that differ from those prescribed in the HMR;
  • For the transportation of Class 9 solid coal pitch compounds in non-specification open top or closed-top sift proof metal cans or fiber drums; and
  • For the transportation of self-inflating life-saving appliances that contain non-specification steel cylinders when being transported between a vessel and an authorized facility for servicing.

This rulemaking action would facilitate commerce activity and reduce paperwork burdens while maintaining an appropriate level of safety. Incorporation of these provisions would reduce the compliance burden and cost on both industry and government. According to the Agenda, PHMSA intended to publish a proposal by the end of January 2012.

Hazardous Materials; Combination Packages Containing Liquids Intended for Transport by Aircraft (RIN: 2137-AE32)
Incident data and testing conducted on behalf of DOT indicate many combination packagings authorized for the transportation of hazardous materials may not withstand conditions normally incident to air transportation. PHMSA is considering measures to reduce the incidence of package failures and to minimize the consequences of failures should they occur. This rulemaking would require additional measures to verify packaging integrity, such as performance testing, and revisions to packaging requirements, such as the addition of liners or absorbent material.
PHMSA has been developing this rule for several years, publishing a notice of proposed rulemaking May 14, 2010 (75 FR 27273) and intends to publish a final rule in May 2012.

Hazardous Materials: Bulk Loading and Unloading Operations RIN: 2137-AE37)
This rulemaking would amend the Hazardous Materials Regulations to require each person (i.e., carrier or facility) who engages in cargo tank loading or unloading operations to perform a risk assessment of the loading and unloading operation and develop and implement safe operating procedures based upon the results of the risk assessment. This rulemaking was first proposed on March 11, 2011 (76 FR 13313), and PHMSA predicts a final rule by August 2012.

Hazardous Materials: Safety Requirements for External Product Piping on Cargo Tanks Transporting Flammable Liquids (Wetlines) (RIN: 2137-AE53)
The rulemaking would amend the Hazardous Materials Regulations to prohibit flammable liquids from being transported in unprotected product piping on existing and newly manufactured DOT specification cargo tank motor vehicles. PHMSA first proposed this rule on January 27, 2011 (76 FR 4847) and expects to publish a final rule in August 2012.

RCRA Biennial Reporting Posted on January 23, 2012 by James

Large quantity generators and all facilities which treat, store, or dispose of hazardous waste must file a report on their waste handling activities with the EPA (or authorized state agency) by March 1 of each even-numbered year. Small and conditionally exempt generators are excluded from this report in most states. [40 CFR 262, Subpart D]

Full instructions for filling out the 2011 Hazardous Waste Report (“Biennial Report”) can be obtained from the EPA here.

This “Biennial Report” usually has a few cosmetic changes every cycle, and 2011 is no different. Most of the changes are clarifications, new examples, and minor modifications.
Of note is that the EPA now recognizes a sub-category of “short-term generators,” including hazardous waste generators such as construction sites, whose waste generating activities are of an intentionally limited duration. The EPA also developed a reference document to help reporters determine which wastes to report, Biennial Reporting: Reportable and Non-Reportable Wastes

Item 12, the notification of hazardous secondary material activity, still exists, though the provisions for secondary material recycling are only active in a few states and overdue for revision.

The Biennial Report is due March 1, 2012. You can obtain copies of the forms and report instructions from your State or EPA Regional Office contact. A list of those contacts is available. The EPA encourages electronic reporting of the Biennial Report where possible, and the instructions for that process can also be obtained from your State or EPA Regional Office contact.

ICAO Dangerous Goods Panel Report Posted on January 17, 2012 by James

The International Civil Aviation Organization (ICAO) has released the report of the twenty-third meeting of the Dangerous Goods Panel (DGP) which was held in Montreal Canada last October. Click to read the 447 page report.

During the meeting, the DGP agreed on several proposals to amend the 2013-2014 edition of the Technical Instructions for the Safe Transport of Dangerous Goods by Air and related publications.

If these amendments are formally adopted into the Instructions by ICAO, they may appear in the International Air Transport Association’s Dangerous Goods Regulations (IATA DGR) as early as January 2013.

This report includes the minutes of the Panel’s discussion and the full text of the proposed changes to the Instructions. Several of the proposals are particularly noteworthy.

The most controversial item is probably the Panel’s decision to not make any major changes to the provisions for shipping lithium batteries. Despite petitions from the Universal Postal Union to allow lithium batteries and equipment in airmail, and from the FAA to strictly limit battery shipments in aircraft, the panel decided to keep the lithium battery rules largely as they are. In part because shippers were just now getting used to the revised regulations first published in 2009, another significant revision so soon could create confusion and compromise safety.

Other proposed amendments include:

  • Adding definitions for the terms “misdeclared” and “undeclared” dangerous goods,
  • Replacing the term “prohbited” with “forbidden” wherever it appears,
  • Allowing small packages to display a reduced size version of the limited quantity marking,
  • Clarifying that overpacks must display the new limited quantity marking when they contain limited quantity packages,
  • New provisions for dangerous goods carried in helicopters,
  • Revised criteria for classifying viscous flammable liquids.

Question of the Week: When do I need a Security Plan? Posted on January 17, 2012 by James

Q. When do I need a hazmat security plan? Do I need a different plan for each placarded shipment?

A. Since 2003, the Department of Transportation has required some hazmat shippers and carriers to create security plans under 49 CFR Part 172 Subpart I. These plans are to ensure that high-hazard shipments are protected from malicious misuse, sabotage, and diversion, whereas the traditional hazmat regulations are intended to prevent and mitigate accidents.

During the early years of this program, a single outgoing shipment of a placarded load of hazardous materials required a facility to institute a security plan. This one-size-fits-all hazard classes standard covered many shippers and carriers whose activities did not pose a significant security risk.

In 2010 (75 FR 10974), the DOT calibrated the security plan requirements to apply to fewer shipments. Consequently, fewer businesses need to create and maintain security plans.

Some materials are always dangerous, so any quantity of the following types of hazardous material require a security plan:

  • Division 1.1, 1.2, or 1.3 explosives;
  • A material that is poisonous by inhalation (PIH);
  • Organic peroxides, Type B, liquid or solid, temperature-controlled;
  • Select agents or toxins regulated by the Centers for Disease Control and Prevention; or
  • Highway route controlled quantities of other high-consequence Class 7 radioactive materials.

[49 CFR 172.800(b)(1), (5), (11), (13), and (15)]

Less dangerous materials are less regulated, so a placardable amount of the following hazardous material requires a security plan, but smaller quantities do not:

  • Division 1.4, 1.5, or 1.6 explosives;
  • Desensitized explosives in Division 4.1 or Class 3;
  • Division 4.3 dangerous when wet materials; or
  • Uranium hexafluoride.

[49 CFR 172.800(b)(2), (7), (9), and (14)]

The 2010 revisions to Subpart I created a third security category for hazardous materials. The following hazmats require security plans only when shipped in “large bulk quantities”:

  • Division 2.1 flammable gases;
  • Division 2.2 compressed gases with a subsidiary hazard of 5.1;
  • Class 3, PG I or II;
  • Division 4.2, PG I or II;
  • Division 5.1, PG I, PG II, and certain ammonium nitrate compounds;
  • Division 6.1 poison other than PIH; or
  • Class 8, PG I.

[49 CFR 172.800(b)(3), (4), (6), (8), (10), (12), and (16)]

A “large bulk quantity” is a quantity greater than 3,000 kg (6,614 lbs.) for solids, 3,000 L (792 gal.) for liquids in a single packaging (including tank cars, cargo tanks, and portable tanks), in other words bigger than an intermediate bulk container (IBC).

Other hazardous materials not listed here (Class 8 PG II or III, Class 3 PG III, non-bulk packages of Division 2.1, Division 4.1, etc.) do not require security plans, even in placarded amounts.

A security plan must assess the transportation security risks, and describe the measures you will take to address those risks. Most importantly, if you have to have a plan you must review it at least annually and update it “as necessary to reflect changing circumstances.” [49 CFR 172.802(c)]

If you’d like more information on these requirements, you can check DOT’s FAQs on security plans.

OSHA Releases White Paper on I2P2 Posted on January 16, 2012 by James

The Occupational Safety and Health Administration (OSHA) released a white paper last Friday discussing injury and illness prevention programs.

Hazmat Shipping News Posted on January 13, 2012 by James

Do you ship dangerous goods? Then here’s a roundup of recent new and articles that may interest you.

From Dangerous Goods International, a report from Chongqing that no Dangerous Goods will be allowed into or out of China from now on. Some of you may remember that similiar restrictions were put in place during the Beijing Olympics in 2008. Other reports indicate that these restrictions may be in place for the next month to increase safety during Chinese New Year holiday season. If you ship dangerous goods to, or rely on shipments from China, you may want to contact your overseas counterpartst to investigate what effect this may have on your supply chain.

From the U.S. Department of Transportation’s Regulatory Information Portal, the January 2012 report on significant rulemakings under development. This is the first real news we have seen in a while on lithium battery regulation. According to this report, PHMSA has already finished a new set of proposed changes for lithium batteries and sent it to the Secretary of Transportation for review. If the Secretary approves, the proposed new rules will go to the White House Office of management and Budget for further review. Asssuming the Secretary and the OMB approve the proposal could be in the Federal Register as early as May 2012.

TSCA Chemical Data Reporting: The New Form U and You Posted on January 10, 2012 by James

On August 16, 2011 (76 FR 50816), EPA published its new Chemical Data Reporting (CDR) Rule, replacing the previously existing Inventory Update Report (IUR) Rule. While the form for submitting data remains the same (the Form U), some key information has changed.
History
In 1978, EPA compiled what is now known as the TSCA Master Inventory. In addition to mechanisms for adding new chemicals to the inventory (a subject for another time), EPA also requires manufacturers and importers to periodically submit specific information about substances on the inventory, including recent publications and site data, to better track the presence of these chemicals in the marketplace.

Between 1978 and 2006, EPA amended the Inventory Update Rule a number of times. In 2011, EPA considered making some major changes. The result was a delay in the announced reporting due date. Originally, data on 2010 production was due in mid-2011, but EPA told sites subject to the IUR to hold off on data submission until the new rule was finalized.

What’s the difference between the IUR and the CDR?
The August 16, 2011 rule did more than just change the name of the reporting requirement. It also changed:

  • The location of the regulations. The IUR rules were in 40 CFR 710. The CDR rules are in 40 CFR 711.
  • The frequency of reporting. The IUR was on a five-year cycle. The CDR is a 4-year cycle. The current report is due in 2012 and the next reporting year will be 2016.
  • The submission period. Instead of the usual June 1 through September 30 period, the report is due between February 1 and June 30, 2012. (The June—September period will be reinstated for the 2016 report.)

Who is subject to CDR?
“For the 2012 submission period, any person who manufactured (including imported) for commercial purposes 25,000 lbs. (11,430 kg) or more of a chemical substance [on the inventory] at any single site owned or controlled by that person during the principal reporting year (i.e., calendar year 2011) is subject to reporting.” [40 CFR 711.8(a)]

Will there be more changes?
In addition to returning the submission period to June through September for the 2016 reporting year, there will be other changes. For 2016, any person who manufactured 25,000 lbs. or more of a chemical substance on the Inventory in ANY calendar year since the previous reporting year will have to submit the Form U in 2016.

Join Lion Technology for a live web seminar covering all the latest TSCA regulations, including a special 20-minute session on the new CDR Rule! For more details, or to register for the TSCA Web Seminar, visit www.Lion.com or call (888)-546-6511.

Recording Injuries Away From Work Posted on January 03, 2012 by James

Q. We have employees who work in the office about half the time, but work off-site the other half. If they were hurt driving for work, would I have to record this injury?

A. As always, it depends on the situation.

Under Occupational Safety and Health Administration (OSHA) rules, all employers are required to keep records of each fatality, injury, and illness that is:

  1. Work-related, and
  2. A new case, and
  3. Meets one or more of the general recording criteria of 29 CFR 1904.7 or the application to specific cases of 29 CFR 1904.8-1904.11. [29 CFR 1904.4]

Assuming the second two criteria are met, something is considered “work-related” if the event or exposure occurs in the “work environment.” OSHA defines the work environment as “the establishment and other locations where one or more employees are working or are present as a condition of their employment. The work environment includes not only physical locations, but also the equipment or materials used by the employee during the course of his or her work.” [29 CFR 1904.5(b)(1)]

An employee’s normal commute is not considered work-related, so you would not have to worry about injuries that occur on the way to the office. However, travel off-site for other work-related activities would be subject to recordability since the employee had to make this trip as a condition of their his or her employment.

Some examples of this include, but are not limited to:

  • A salesperson traveling to meet clients,
  • Traveling out of town to attend a conference, or
  • Delivering materials to customers.

As a final, finer point, an injury or illness would not be considered work-related if it occurred while an employee was on a personal detour from a reasonably direct route of travel (e.g., if the employee had taken a side trip for personal reasons) [29 CFR 1904.5(b)(6)(ii]. However, if an employee had made a personal detour and then resumed his or her direct route of travel, an injury would again be considered work-related and need to be recorded.

Reference: 29 CFR (Labor) Pat 1904—Recording and Reporting Occupational Injuries and Illness

 

DOT Publishes Clarification to HM-218F Rule Posted on December 30, 2011 by Joel

PHMSA published a rule in Wednesday’s Federal Register (December 28, 2011). It was meant to amend and clarify the July 20, 2011 HM-218F rulemaking. According to PHMSA, “…[T]he July 20, 2011 final rule [was meant to] promote safer transportation practices; eliminate unnecessary regulatory requirements; finalize outstanding petitions for rulemaking; facilitate international commerce; and simplify the regulations. This final rule corrects errors in the pictorial display of labels, eliminates references to transitional provisions that were previously removed from the HMR, clarifies shipping paper amendments, corrects an editorial error, and extends the effective date of certain shipping paper amendments adopted in the July 20, 2011 final rule.”

If you would like more information on this rulemaking, view the Federal Register here.

DOT Clarifies Harmonization Rulemaking Posted on December 30, 2011 by Joel

The U.S. Department of Transportation’s (DOT) Pipeline and Hazardous Materials Safety Administration (PHMSA) is promulgating a final rule that amends the January 19, 2011 harmonization rulemaking.

The new rule does many things, but most notably, PHMSA is extending the phase out period for the square-on-point identification number marking currently used on limited quantity packages as well as further explaining the future of the ORM-D and limited quantity markings [49 CFR 172, Subpart D].

In the January 19, 2011 harmonization rulemaking, PHMSA published a final rule that revised the Hazardous Materials Regulations to align and harmonize with various international standards, including the International Civil Aviation Organization (ICAO) Technical Instructions and the International Maritime Dangerous Goods (IMDG) Code. PHMSA promulgates a harmonization rule every other year in order to ease the burden of hazmat shipments that go by different modes of transport (i.e., motor vehicle, vessel, rail, air) and to make international shipments more consistent with our domestic rules.

In this current rule, PHMSA responded to administrative appeals brought to them by different regulatory groups, provided clarifications to the harmonization rule, and corrected typographical and other minor errors.

ORM-D Markings for Limited Quantity Packages

The most significant thing to come out of this final rule concerns the “older” square-on-point ID marking for limited quantity packages. With the January 19, 2011 rulemaking, PHMSA planned to phase out the current limited quantity and consumer commodity (ORM-D) rules, and transition to the international standard for limited quantities. Initially, the DOT had planned the following phase out periods:

1. Companies shipping packages with the ORM-D, consumer commodity marking could still do so until December 31, 2013 (a 3 year period) before they would have to switch to the new limited quantity markings.

2. ORM-D-AIR shipments would only be good until December 31, 2012.

3. Companies shipping packages using the “old” limited quantity markings (which consists of a white square-on-point with the hazmat’s identification number inside) could only use that marking until December 31, 2011 (a 1 year period) before they would have to switch to the new limited quantity marking.

Several regulatory groups complained that this was unfair since the ORM-D marking received a longer phase out period. The DOT agreed that this was true, and thus, are now allowing any packages with the square-on-point limited quantity marking to be shipped until December 31, 2013 (the same as the ORM-D marking), unless the shipment is going by air.

There is actually a nice summary of when you can and cannot use these markings in the rulemaking under Section V., “Summary of Changes Regarding Limited Quantity Material and ORM-D.”

There was also another issue raised by regulatory groups about the new limited quantity markings, specifically the ones with the “Y” in the middle.

The new “Y” limited quantity marking was designed to specify that a package can be shipped as a limited quantity by air. However, many were wondering if they could use the “Y” marking on their ground or vessel shipments. The DOT has concluded that if a package is suitable as an air limited quantity, signified by the “Y” mark, then that marking would be allowable for ground and vessel shipments. Air shipments are more stringent, so a package prepared for air would automatically meet the definition of a limited quantity by ground or vessel.

The rest of the rulemaking changes include, but are not limited to: ” Fuel cells cannot be shipped as ORM-D-AIR, ” Clarification that certain Class 1 explosives and Class 7 radioactives can be shipped as limited quantities by aircraft, ” ID 8000 can only be used for Consumer Commodities by air, and they are excepted from Class 9 prohibition, ” Division 4.3 dangerous when wet materials cannot be ORM-D, and ” A number of smaller typographical and editorial corrections.

PHMSA is planning on publishing this final rule in the today’s Federal Register. View a copy of the pre-publication version.

RCRA State Authorization Posted on December 27, 2011 by James

Did you know that each U.S. state can enforce its own hazardous waste program and that each State program is unique and can vary from Federal standards?

When Congress first gave the U.S. EPA authority to regulate hazardous waste in the United States (the Resource Conservation and Recovery Act of 1976), they included provisions for each U.S. state to establish and run an independent program of hazardous waste regulation that would operate in lieu of enforcement of Federal standards by the U.S. EPA.

Section 3006 of RCRA encourages each state to develop its own program for managing hazardous waste. As long as the state’s program is “equivalent to” and “consistent with” Federal standards, the EPA must “authorize” the state to implement its program “in lieu of” the Federal program.

When a state is “authorized,” it means that all generators, transporters, and other hazardous waste facilities in that state must comply with the laws, rules, and other requirements of the state rather than those of the U.S. EPA. Even the EPA itself must enforce State laws and rules in place of its own regulations when acting in an authorized state.

Delegating regulatory primacy to the state also means that new rules from the EPA don’t take effect in authorized states until the state itself adopts them[1]. While authorized states are not obligated to adopt new exclusions, allowances, reliefs, or exceptions, they are required to adopt new requirements in order to keep their programs “at least as stringent” [40 CFR Part 271] as Federal standards. If states don’t keep their programs “at least as stringent” as Federal standards, the EPA can revoke the state’s authorization, and all hazardous waste activity in the state becomes subject to inspection, oversight, and enforcement by the U.S. EPA only.

When the EPA creates new, more stringent rules, the state must incorporate those new requirements, or some consistent equivalent, within one year. This time limit is extended to two years if the State legislature needs to get involved.

Because state standards aren’t allowed to be less stringent than Federal standards, the most common variations between State and Federal regulations are things like fewer exceptions, new categories of regulated waste, and additional requirements for storage, transportation, or bookkeeping.

If you would like to know more about state differences, you could visit our workshops on hazardous waste management in California, Texas, and New York, or, if you are a Lion Member, you can view the state-by-state reviews in our Lioncasts program.

[1] There is, of course, an exception to this delayed rule adoption. If the EPA promulgates new regulations under the authority granted by the Hazardous and Solid Waste Amendments of 1984, those new regulations take effect in all states simultaneously, even without state-level adoption of similar rules. [See Section 3006 of RCRA]

References
Memorandum on Determining Equivalency of State RCRA Hazardous Waste Programs, Sept. 07, 2005, in the RCRA Online Database
Discussion of State Authorization & Adoption (73 FR 64753)

Keeping Up With the Changes to International Dangerous Goods Regulations Posted on December 20, 2011 by James

Q. How much longer can I ship something as a Consumer Commodity, ORM-D?

A. On January 19, 2011, the Department of Transportation (DOT) promulgated a new regulation that phases out the ORM-D classification [76 FR 3308]. In the past, this classification has applied to packages of “consumer commodities.” These are defined as materials that are “packaged and distributed in a form intended or suitable for sale through retail sales agencies…for consumption by individuals for purposes of personal care or household use” [49 CFR 171.8]. In essence, these are typical hazardous materials that are packaged in a form you could find on a store shelf.

ORM-D packages have been given much relief from the regulations, including, but not limited to:

  • Not needing to use UN performance tested packaging,
  • Not requiring hazard class labels on packages,
  • Not requiring placards for vehicles containing ORM-D packages, and
  • Not having to create hazmat shipping papers (unless the material is a hazardous waste, hazardous substance, marine pollutant, or going by air or vessel).

To harmonize with other international hazmat regulations (which do not recognize the ORM-D classification), the DOT has decided to phase out ORM-D and simply place these packages under the label “limited quantity.” The good news is that limited quantities still get the same relief as ORM-D. The only real practical difference for most shippers is that the markings on the outside of the package will be slightly different.

There are actually two phase-out dates for the ORM-D classification. For those that ship materials as ORM-D-AIR (which is more uncommon), the last acceptable date is December 31, 2012. Then, one year later, on December 31, 2013, the common ORM-D classification will come to an end.

It is important to note you do not have to wait until these dates to ship something under the new limited quantity reliefs. You can switch over to the new limited quantity rules at any time during this transition period.