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.

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• Tagged chemical, chemical reporting, Chemicals, clean air act, compliance, hazmat, RCRA, Regulatory Agenda, waste management
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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.

• Posted in Hazmat Shipping, Newsletter Archives
• Tagged 49 CFR, DOT, hazardous materials, hazmat, PHMSA, regulations, Regulatory Agenda
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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.

• Posted in Hazardous Waste, Newsletter Archives
• Tagged generation, generator, hazardous waste, RCRA, reporting, waste management
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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.

• Posted in Hazmat Shipping
• Tagged harmonization, hazardous materials, hazmat, IATA, ICAO, lithium batteries, PHMSA, regulations, shipping, transportation
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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.

• Posted in Hazmat Shipping, Newsletter Archives
• Tagged 49 CFR, DOT, hazardous materials, hazmat, PHMSA, transportation
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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.

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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.

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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.

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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

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• Tagged OSHA, recordkeeping, work environment
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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.

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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.

• Posted in Final Rules, Hazmat Shipping
• Tagged consumer commodity, DOT, harmonization, limited quantity, ORM-D, PHMSA
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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)

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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.

• Posted in Hazmat Shipping, Newsletter Archives
• Tagged 49 CFR, DOT, hazardous materials, hazmat, limited quantity, PHMSA, regulations, transportation
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Environmental Regulations Year in Review Posted on December 13, 2011 by James

As the year comes to a close, we take a moment to look back and reflect on what the U.S. Environmental Protection Agency has done, and not done, over the past twelve months.

New and Amended Air Programs
The EPA had proposed to tighten the 2008 air quality standards for ground-level ozone ahead of schedule, but significant opposition from the regulated community and the White House led the Agency to withdraw the initiative.

The EPA also wrote new national emissions standards for hazardous air pollutants (NESHAPS) for over a dozen industries, including: shipbuilding & wood furniture manufacture; primary lead processing; petroleum refineries; pharmaceuticals and printing; boilers; chemical manufacturing; gold mining; gasoline distribution; and amended the NESHAP for plating & polishing operations.

Although this was also the first year for large emitters to report greenhouse gas (GHG) emissions, the EPA did delay the reporting deadline until September 30, 2011. As a complex and far-ranging new program, the reporting system for GHGs continues to develop.

New Water Rules
The Clean Water Act gives the EPA and Army Corps of Engineers authority over all “waters of the United States.” Over the past few years, a controversy has arisen over what waters and waterways are actually subject to regulation and NPDES permitting, and which are not. Several cases on this issue have reached the Supreme Court, and the last significant case (Rapanos v United States) resulted in a decision that didn’t quite explain which waters are or are not subject to regulation by the EPA. In an attempt to clear these muddied waters, the Agency and Corps published a draft in April explaining which waters they would and would not seek to regulate. There was a public comment period, but Lion Technology has heard little about this issue since, so it seems to lie dormant for now.

The EPA also completed another court-mandated rulemaking this fall. Over the past decade, several court cases have concluded that many pesticide applications would require NPDES permits under the Clean Water Act as well as pesticide permits under FIFRA. Because double-permitting what are generally routine activities is considered by some to be excessive, the EPA published a General Permit to manage the situation until Congress can amend the appropriate laws.

Another major water program the Agency worked on this year was yet another extension (until May 2013) for farms to complete their new oil spill prevention and countermeasure programs. After several years of extensions, all other facilities were finally subject to the new rules as of November 10 of this year.

• Posted in Environmental, Newsletter Archives
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EPA Guidance Document: How Do I Keep My RCRA Waste Containers “Closed”? Posted on December 08, 2011 by James

Whether it is your 90-day storage area, your 180-day storage area, or your satellite accumulation area, all containers that contain hazardous waste must remain “closed,” except when adding or removing waste [40 CFR 265.173(a)].

The word “closed” is not actually defined in the RCRA hazardous waste regulations, and this is a common sore point for people subject to regulation. Because the Agency never defined it, it is largely interpretive. Determining if a generator’s hazardous waste container is actually closed may depend on the judgment of a given EPA or State inspector.

Since the EPA has received so many inquiries about the meaning of “closed,” it actually created a guidance document and released it on December 3, 2009 to help explain the standard. It reissued this document again recently, but added some Q&A topics at the end to help expand on a few specific issues.

If you’d like to see the document, click here.
The document gives numerous examples of what the EPA would consider “closed.” However, the EPA stresses that the meaning can change depending on what hazardous waste is being stored. Containers should be looked at on a case-by-case basis.

One of the sections that seemed quite valuable was an excerpt from the original preamble published way back on May 19, 1980. In it, the EPA explained the purpose for keeping something closed. In short, the closure requirement was meant to:
“ Minimize emissions of volatile wastes,
“ Help protect ignitable or reactive wastes from sources of ignition or reaction,
“ Help prevent spills,
“ Reduce the potential for mixing of incompatible wastes, and
“ Reduce direct contact of facility personnel with waste.

Depending on what type of hazardous waste you store, you may need certain types of closure. For instance, if you are storing highly volatile waste in a drum, you will need a drum that prevents emissions of those volatiles. That could mean ensuring all bungs or other holes are sealed tightly enough, so no vapors can escape. If your waste is not all that reactive or volatile, you will need a drum that can prevent spills. This may encourage the inspector to introduce the ever popular “tip test” (meaning it will not leak if you tipped it over) into the inspection process.

The end of the reissued guidance document includes a Q&A section to help clarify some points previously published. One very interesting question mentioned processes that continually generate hazardous waste. It reads:

“Question: Page 10 of the Guidance states that ‘[c]ontainers continuously or intermittently receiving solid or semi-solid hazardous’ waste often remain open while ‘connected to a device (e.g., under a baghouse or filter press) that generate the waste.’ Does this mean that it is always acceptable to leave a container open while it is connected or positioned to collect waste from a process device?”

The EPA answered, “No. 40 C.F.R. §§264.173(a) and 265.173(a) both require that a hazardous waste container ‘must always be closed during storage, except where it is necessary to add or remove waste’ (emphasis added). The Guidance merely recognizes that in some situations the addition of waste to a container is not a discrete short-term act.”

The answer, in essence, allows inspectors to deem whether or not a container can be left open if it is necessary to collect all of the waste coming out of the process. If it is not necessary, the container should be closed.

One other thing that should be noted is that the EPA has stressed that this document is in no form actual law. The Agency wants to give inspectors the leeway to decide on a case-by-case basis what should be constituted as “closed.” In addition, as always, states can have more stringent standards than those of the Federal government, so it’s always important to check with your state to see if it has any defined methods.

What about you? What has been your experience with “closed” containers? Leave a comment below.

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Are you Ready for OSHA’s GHS Adoption? Posted on December 06, 2011 by James

Q. How will the Globally Harmonized System (GHS) affect my HazCom Standard communications?

A. The Hazard Communication (HazCom) Standard is a rule designed by the Occupational Safety and Health Administration (OSHA) to prevent or minimize employee exposure to hazardous chemicals. As part of that standard, applicable employers must create a HazCom program to keep their employees safe [29 CFR 1910.1200].

At a minimum, this program must include:

• A hazard determination,
• A labeling system,
• A system for making Material Safety Data Sheets (MSDSs) available, and
• Training. [29 CFR 1910.1200(b)]

Over the past several years, the Unied Nations has worked to create a Globally Harmonized System of Chemical Classification and Labeling (GHS). The GHS is a standardized international code for classifying hazardous chemicals, and communicating those hazards through labels, warning statements, and safety data sheets. OSHA and other agencies of the U.S. government have been working to harmonize American rules and regulations with these evolving international standards in order to facilitate safety and commerce on a global scale. On September 30, 2009 (74 FR 50280), OSHA published a proposal to amend the HazCom Standard with the GHS.

The most significant changes that OSHA proposes would be to standardize the form and content of hazard labels and MSDSs.

Currently, under the HazCom Standard, there is no standardized labeling system. Employers can use any system of labels, as long as they train their employees to recognize and understand the labels in the workplace. Current labels need only to identify which materials are hazardous chemicals and give “appropriate” hazard warnings. [29 CFR 1910.1200(f)]

On the other hand, the Globally Harmonized System (GHS) includes a specific set of labels with a consistent format and standardized pictograms. This would apply equally to all employers subject to the standard. Many of these labels contain common pictograms used in other sets of regulations (like the DOT hazmat regulations). If you would like to see these labels, click here.

The GHS would also make changes to MSDSs. As noted above, employers must make an MSDS available to their employees for each hazardous chemical in the workplace. Currently, OSHA has no particular format requirements for MSDSs, as long as twelve specific pieces of information appear, including but not limited to: the identity of the chemical, the physical and health hazards associated with that chemical, and emergency and first aid procedures [29 CFR 1910.1200(g)].

Under the GHS, MSDSs would actually be called SDSs (Safety Data Sheets). SDSs require sixteen pieces of data, instead of twelve, and must be organized in a specific format. Some additional things that were not previously required, but would now be required, include sections on disposal considerations and transportation information. If you would like more information on SDSs, click here.

Additionally, any changes to your labeling or MSDS system would have to be updated in your written HazCom program and training plan. But there is no need to rush a rewrite today, although OSHA is expected to finalize these changes to the HazCom Standard within the next few months, they are also planning for a three year phase-in period before enforcing the new standards. If you’d like more information on classification of hazardous chemicals, click here.

• Posted in Health & Safety, Newsletter Archives
• Tagged chemical, Chemicals, GHS, harmonization, hazard communication, hazcom, OSHA, regulations
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PHMSA Restricts Hand-Held Mobile Phone Use for Commercial Drivers Posted on December 02, 2011 by James

Today, December, 2, 2011, two agencies under the Department of Transportation amended their rules to restrict the use of hand-held mobile telephones by drivers of commercial motor vehicles.

Promulgated by the Pipeline and Hazardous Material Safety Administration (PHMSA) and the Federal Motor Carrier Safety Administration (FMSCA), this rule modifies the current rules found in the Hazardous Materials Regulations (HMR) and the Federal Motor Carrier Safety Regulations (FMCSR).

The goal of the rule change, effective on January 3, 2012, is to prevent distracted driving that can lead to crashes, fatalities, and injuries involving interstate trucks and buses.

“When drivers of large trucks, buses, and hazardous materials take their eyes off the road for even a few seconds, the outcome can be deadly,” said Transportation Secretary Ray LaHood. “I hope that this rule will save lives by helping commercial drivers stay laser-focused on safety at all times while behind the wheel.”

Under the HMR, the rule amends Part 177 (“Carriage by Public Highway”), specifically 49 CFR 177.804(c), which relates to compliance with Federal Motor Carrier Safety Regulations.

Should a driver be caught using a hand-held mobile phone, he or she will face Federal civil penalties up to $2,750 per offense. Drivers with multiple offenses may also face disqualification from operating a commercial motor vehicle.

States will also have the ability to suspend a driver’s commercial driver’s license (CDL) after two or more serious traffic violations.

The new rule is part of a greater initiative to keep drivers alert and safe. In February 2011, PHMSA already published a rule banning texting by intrastate hazardous materials drivers.

“This final rule represents a giant leap for safety,” said FMCSA Administrator Anne S. Ferro. “It’s just too dangerous for drivers to use a hand-held cell phone while operating a commercial vehicle. Drivers must keep their eyes on the road, hands on the wheel, and head in the game when operating on our roads. Lives are at stake.”

On a related note, motor carriers would also now be prohibited from requiring or allowing their drivers to use hand-held mobile devices.

The new regulation does not prohibit hands-free devices.

The final rule can be found at: http://www.gpo.gov/fdsys/pkg/FR-2011-12-02/pdf/2011-30749.pdf.

• Posted in Hazmat Shipping
• Tagged 49 CFR, hazardous materials, hazmat, new final rule, PHMSA, regulations, transportation
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Preparing for 2012 Reporting Obligations Posted on November 29, 2011 by James

Personally, the last month of the year usually means entry into the year–end holiday season. For EHS managers, this should also mean preparing your 2012 compliance calendars. These calendars will likely include various reporting obligations. While many of your reporting obligations and frequencies are site–specific (e.g., NPDES discharge monitoring reports and Clean Air Act Title V certifications), some events are more universal. In fact, some reporting obligations only come along every few years or may be new for 2012. As you prepare your calendars, please take into consideration the following reporting obligations:

February 1, 2012—June 30, 2012: Chemical Data Reporting (40 CFR 711)—While technically a new rule for 2012, the requirements at 40 CFR 711 replace the old chemical substance inventory update reporting (IUR) from 40 CFR 710. According to 40 CFR 711, any site that manufactured or imported a chemical substance (including chemical substances in mixtures) in 2011 in a quantity > 25,000 pounds must submit a chemical data report (CDR) to the EPA for that chemical substance. For the 2012 CDR submission, the report must include full manufacturing data for 2011 and production volume for 2010. The EPA requires that all CDR submission be electronically submitted using e–CDR software. For more information on the CDR, visit http://www.epa.gov/iur/. Note: If you have never submitted any electronic information to the EPA through its Central Data Exchange (CDX), then you will need to register with the CDX before submitting your CDR submission.

March 1, 2012: Hazardous Waste Biennial Report—A large quantity generator that who ships any hazardous waste off site must prepare and submit a copy of the Biennial Report to the EPA (or State agency) on March 1 of any even–numbered year (40 CFR 262.41). The report must cover the generator activities during calendar year 2011. For more information regarding biennial reporting, visit http://www.epa.gov/wastes/inforesources/data/biennialreport/.

March 1, 2012: Annual Hazardous Chemical Inventory Reporting (40 CFR 370)—This Emergency Planning and Community Right–to–Know Act (EPCRA) program applies to facilities that were required to prepare or have available any material safety data sheet per 29 CFR 1910.1200 and had any hazardous chemical, as defined under 40 CFR 370.66, at or above its reporting trigger at any time in 2010. Covered facilities must submit an inventory report to the state emergency planning commission, local emergency planning committee, and local fire department.

Currently, all states require the Tier II form and may require electronic submission. The EPA has just released the 2012 version of their electronic reporting tool, Tier 2 Submit. Note: California’s Business Plan requirements (19 CCR 2729.1), including hazardous chemical inventory reporting, fulfill the requirements at 40 CFR 370.

March 31, 2012: Mandatory Greenhouse Gas Emission Reporting (40 CFR 98)—This reporting requirement applies to the facilities listed at 40 CFR Part 98. There are different thresholds, depending on the covered source, under Part 98. Several new facilities are subject to greenhouse gas emission reporting for the first time, based on 2011 activity (see the EPA Fact Sheet). To accommodate the rule’s electronic submission requirement, reporting facilities must use the EPA’s e–GGRT system.

On November 29, 2011, the EPA promulgated a final rule that made some technical corrections and clarifications to the greenhouse gas reporting rule. Included in this final rule was a one-time, six-month extension of the 2012 reporting deadline for facilities and suppliers that contain one or more source categories for which data collection began in 2011. These sources include: Electronics Manufacturing (Subpart I), Fluorinated Gas Production (Subpart L), Magnesium Production (Subpart T), Petroleum and Natural Gas Systems (Subpart W), Use of Electric Transmission and Distribution Equipment (Subpart DD), Underground Coal Mines (Subpart FF), Industrial Wastewater Treatment (Subpart II), Geologic Sequestration of Carbon Dioxide (Subpart RR), Manufacture of Electric Transmission and Distribution (Subpart SS), Industrial Waste Landfills (Subpart TT), and Injection of Carbon Dioxide (Subpart UU),or in Imports and Exports of Equipment Pre-charged with Fluorinated GHGs or Containing Fluorinated GHGs in Closed-cell Foams (Subpart QQ). For these sources, the deadline for 2012 reporting is moved from March 31, 2012, to September 28, 2012.

June 30, 2012: Hazardous Materials Registration (49 CFR 107, Subpart G)—Shippers or carriers who meet one of six triggers at 49 CFR 107.601 must register with the U.S. DOT annually and pay a fee.

July 1, 2012: Toxic Chemical Release Reporting (40 CFR 372)—Facilities listed in Part 372 with 10 or more full–time employees that manufactured, processed, or otherwise used one or more of nearly 600 listed toxic chemicals above the specified thresholds in 2011 must submit a report detailing the facility’s releases to the environment and pollution prevention efforts for that toxic chemical.

July 1, 2012: Safe Drinking Water Act Consumer Confidence Reporting (40 CFR 141)—Community public water systems must distribute a copy of the consumer confidence report on the water quality of the drinking water.

July 1, 2012: Polychlorinated Biphenyl (PCB) Annual Report (40 CFR 761.180(a))—All facilities using or storing at any one time at least 45 kilograms (99.4 pounds) of PCBs contained in PCB container(s), or one or more PCB transformers, or 50 or more PCB capacitors shall develop and maintain at the facility a written annual document log of the disposition of PCBs and PCB items.

It is important to remember that additional reporting under Federal and State requirements may also apply to your facility. Carefully review all of your facility permits and associated regulations to establish a comprehensive reporting calendar for your facility.

• Posted in Environmental, Hazardous Waste, Hazmat Shipping, Health & Safety, Newsletter Archives
• Tagged deadlines, DOT, EPA News, hazardous waste, hazmat, RCRA, reporting
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Feature Article: Find Out More About Hazardous Waste Regulations Posted on November 22, 2011 by James

The Resource Conservation and Recovery Act is a complex law that serves as the Federal basis for waste management everywhere in the country. Only a small part of the Act (Subtitle C) covers hazardous waste, and then only in broad strokes.

Understanding the law is not enough; the regulations that explain and enforce the law [40 CFR Parts 260-279] are themselves more than a thousand pages long, and even that is still not always enough. Sometimes, the hazardous waste regulations do not adequately address all situations. So if you are unsure how the regulations apply to your operation, what do you do?

The Federal Register
Whenever the EPA creates a new regulation, or modifies an old one, the law requires the Agency to explain itself. These explanations appear in the preamble to a new or proposed rule when it is published in the Federal Register. In many cases, when you find a regulation unclear or difficult to apply to a particular scenario, it is useful to refer to the preamble to see what EPA thought it meant when it said what it said.

For example: The EPA allows small quantity generators to accumulate hazardous waste for up to 270 days if they “…must transport his waste…over a distance of 200 miles or more for offsite treatment, storage, or disposal…” [40 CFR 262.34(e), emphasis added]. However, when promulgating the small quantity generator rules in 1986, the EPA specifically said that generators could send waste to a far away TSDF (and take advantage of the longer accumulation time) even if closer TSD facilities were available. Without knowing about the preamble, the word “must” in the regulations can be read more proscriptively than it is intended.

RCRA ONLINE
If you are unsure how to apply the regulations to a particular situation, you can always contact the EPA and ask a representative to interpret the regulations for you. You can also check to see if they have ever interpreted this situation before. Make sure to get the EPA’s response in writing for recordkeeping purposes.

The U.S. EPA has been answering questions about hazardous waste, and the hazardous waste regulations, since 1980. The Agency keeps a selection of letters of interpretation, guidance documents, and other publications in a free online database called “RCRA ONLINE.” Keep in mind that letters of interpretation are not substitutes for regulation. Each letter is a specific response to a unique situation and cannot always be transferred to other times and places. And as often as the RCRA regulations are amended, a new letter may supersede an old one.

State Rules May Vary
One aspect of the hazardous waste regulations that can create great confusion is state authorization. Under RCRA, each U.S. state can create its own hazardous waste management program, as long as that program is at least as stringent as Federal standards. Most states don’t create too many extra or different regulations, but each enforcement agency will have its own policies and priorities about how to enforce the rules. These policies may be different from Federal interpretations and may or may not be written down.

When it comes to hazardous waste, it always pays to check with your State-level authorities, as well as with the U.S. EPA.

• Posted in Hazardous Waste, Newsletter Archives
• Tagged EPA News, Federal Register, RCRA
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