Lion News August 2017

Spring 2017 Unified Regulatory Agenda Released

Posted on August 28, 2017 by Roger Marks, James Griffin, and Anthony Cardno

Last week, the Federal government released its semiannual update on regulatory actions to be finalized, proposed, or withdrawn in the coming months. Officially titled the “Current Unified Agenda of Regulatory and Deregulatory Actions” and released twice per year, the report looks a little different this time around.

For one thing, Federal agencies have posted a list of “inactive” rules for the first time in the history of these Agendas. In Agendas past, these items would appear on the “long term actions” list—and sometimes remained there for years. The addition of an inactive list will help EHS cfr-books.jpgprofessionals determine which new or revised regulations they should prepare for now, and which have been relegated to the back burner. See the full list of inactivated rulemaking activities here.

As part of a government-wide effort to reduce regulatory burden—as required by Presidential Executive Order—Federal agencies also  withdrew 469 actions featured on the Fall 2016 Agenda.

Here we will take a look at pressing regulatory actions that impact US DOT hazardous materials transport; US EPA hazardous waste management; chemical emergency preparedness, reporting, and recordkeeping; and OSHA workplace safety programs.

US DOT Pipeline and Hazardous Materials Safety Administration (PHMSA) 

PHMSA—Final Rule Stage

lithium_batteries_cellphone_stack.jpgHazardous Materials: Enhanced Safety Provisions for Lithium Batteries Transported by Aircraft
RIN 2137-AF20

To keep pace with rapidly changing international standards for air transport of lithium-ion batteries, US DOT is set to finalize new restrictions to the 49 CFR lithium battery rules in September 2017. The Final Rule is expected to include three crucial updates for lithium battery air shippers:
  • To prohibit the transport of lithium ion cells and batteries as cargo on passenger aircraft;
  • To limit lithium ion cells and batteries to 30% state-of-charge (SoC) for air transport; and
  • To limit shippers to one (1) package per consignment of lithium batteries shipped under the provisions for “small” or “excepted” cells and batteries.
Hazardous Materials: Miscellaneous Amendments; Response to Appeals and Corrections
RIN 2137-AF27

After receiving appeals to hazmat Final Rule 218-H, promulgated in June 2016, DOT has moved to revise the requirements of that Final Rule as follows:
  • Extend the compliance date by 1 year for new packaging requirements for nitric acid;
  • Extend the compliance deadline by 1 year for the new prohibition against using alphanumerical telephone numbers (e.g., 1-800-HAZMAT) for emergency response information;
  • Clarify and correct typographical errors in the table for periodic testing and inspection of hazmat cargo tanks; and
  • Clarify the requirements applicable to testing of pressure relief devices for cargo tank motor vehicles (CTMVs).
DOT expects to complete a Final Rule by the end of 2017.

Hazardous Materials: Oil Spill Response Plans/Info Sharing for High-Hazard Flammable Trains
RIN 2137-AF08

Final_rule_FRA_HHFT_crude_oil_trains_rollaway.gifIn July 2016, PHMSA proposed new requirements for High-Hazard Flammable Trains (HHFTs).
Updates include:
  • Expansion of applicability for comprehensive oil spill response plans (OSRP) required for railroads that transport HHFTs; 
  • Updating the format of OSRPs and requiring railroads to share information with emergency responders; and
  • Incorporating by reference an alternative method for testing initial boiling point of flammable liquids.
A Final Rule is expected before the end of 2017.

Hazardous Materials: Response to Petitions to Modify, Clarify, or Eliminate Regulations (RRR)
RIN 2137-AF09

PHMSA plans to publish a Final Rule to address 19 petitions from industry stakeholders to reduce or eliminate current regulatory burdens, and enhance safety. PHMSA expects to promulgate a Final Rule in late 2017.

Hazardous Materials: Notification of Pilot-in-Command (NOTOC) and Response to Air Related Petitions for Rulemaking
RIN 2137-AF10

PHMSA is working to promulgate a Final Rule to update its NOTOC rules to harmonize with current international requirements.

PHMSA—Proposed Rule Stage

Hazardous Materials: Volatility of Unrefined Petroleum Products and Class 3 Materials
RIN 2137-AF24

PHMSA is considering whether to establish vapor pressure limits for unrefined petroleum products and potentially all Class 3 flammable liquids. These limits, if enacted, may impact rail transport and/or other modes of transport.  PHMSA collected comments on its Advanced Notice of the rulemaking earlier this year. A date for a Notice of Proposed Rulemaking (NPRM) is not yet decided.

Hazardous Materials: FAST Act Requirements for Real-Time Train Consist Information by Rail
RIN 2137-AF21

As required under the Fixing America’s Surface Transportation Act (FAST Act), PHMSA is working to develop information sharing capacity for Class 1 railroads to generate accurate, real-time, electronic train consist information to assist law enforcement and emergency responders during hazmat rail incidents. An NPRM is expected in Spring 2018.

Hazardous Materials: PIPES Act Requirements for Identification Numbers on Cargo Tanks Containing Petroleum Based Fuel
RIN 2137-AF25

As required under the Protecting our Infrastructure of Pipelines and Enhancing Safety Act of 2016 (PIPES Act), PHMSA is reviewing a petition for rulemaking related to marking identification numbers on cargo tanks that contain petroleum based fuels. An NPRM is expected in late 2017.

Department of Homeland Security (DHS)

DHS—Pre-rule Stage

Chemical Facility Anti-Terrorism Standards (CFATS)
RIN: 1601-AA69

In 2014, DHS proposed revisions to the Chemical Facility Anti-Terrorism Standard, or CFATS—an infrastructure protection program for more than 3,000 US chemical facilities, found at 6 CFR Part 27. A Notice of Proposed Rulemaking on CFATS updates is expected in October 2017.

Environmental Protection Agency (EPA)

EPA—Final Rule Stage

Procedures for Evaluating Existing Chemical Risks Under TSCA (RIN 2070-AK20)
Procedures for Prioritization of Chemicals for Risk Evaluation Under TSCA (RIN 2070-AK23)

Chemical_Reagents_2.gifOn July 20, 2017, EPA issued two Final Rules to amend the process by which the agency prioritizes and evaluates chemicals to determine whether they pose undue risks to human health or the environment.  

EPA has authority to evaluate and regulate chemicals in commerce under the Toxic Substances Control Act (TSCA), as amended by the Frank R. Lautenberg Chemical Safety for the 21st Century Act.

Both Final Rules take effect on September 18, 2017, and simply lay out the process by which EPA will carry out its responsibilities for prioritizing and evaluating chemicals under the amended law. 

TSCA Inventory Notification Active-Inactive Reporting Requirement
RIN 2070-AK24

Commonly called the “inventory reset rule,” EPA promulgated a Final Rule on August 11, 2017 to require chemical manufacturers and importers to report on ten years of chemical manufacturing and import data. This one-time retrospective electronic notification covers the period between June 21, 2006 and June 21, 2016, and will help EPA determine which of the 85,000 chemicals on the TSCA inventory are “active” in commerce, and which aren’t.  

User Fee Schedule for the Electronic Hazardous Waste Manifest 
RIN 2050-AG80

drums-in-truck.jpgEPA continues to develop an “e-Manifest” system for electronic tracking of hazardous waste shipments. A Final Rule is expected to be published before the end of 2017 and include:
  • An established fee program and schedule; 
  • The date on which EPA will be ready to transmit and receive manifests through the e-Manifest system; and
  • The date on which shippers and carriers must comply with new e-Manifest regulations.
Non-hazardous Secondary Materials—Additions to List of Categorical Non-Waste Fuels; Other Treated Railroad Ties 
RIN 2050-AG83

EPA plans to add railroad ties treated with creosote-borate, copper naphthenate, and copper naphthenate-borate to the list of categorical non-waste fuels found at 40 CFR 241.4(b) by the end of 2017. 

EPA—Proposed Rule Stage

Definition of “Waters of the United States” – Recodification of Preexisting Rules
RIN 2040-AF74

Pursuant to Executive Order 13778, EPA is reviewing the revised definition of “Waters of the United States” (WOTUS), which expanded the applicability of major Clean Water Act programs when it was finalized in 2015. In July, EPA published a Proposed Rule to begin this process of re-re-defining WOTUS. 

Because of the thorny applicability issues and seemingly non-stop legal challenges surrounding the WOTUS Rule, EHS professionals can expect a complex, protracted process to recodify the definition.  

Increasing Recycling: Adding Aerosol Cans to the Universal Waste Regulations
RIN 2050-AG92

AerosolCans_3.jpgEPA is considering a proposal to list aerosol cans as universal waste at 40 CFR 273, thereby streamlining the management standards for this common waste stream.  A NPRM is expected in spring 2018

Amendment to Standards and Practices for All Appropriate Inquiries under CERCLA
RIN 2050-AG94

A direct Final Rule is set to take effect on September 18, 2017 which will recognize an updated ASTM consensus standard as compliant with the All Appropriate Inquiries Rule under CERLCA at 40 CFR 312.

Review of Primary National Ambient Air Quality Standards (NAAQS) for Nitrogen Dioxide
RIN 2060-AR57

As required under the Clean Air Act, EPA reviews its NAAQS once every five years. On August 14, EPA proposed a rule to retain the current NAAQS for nitrogen dioxide, without revision.

EPA—Pre-rule Stage

TSCA Reporting and Recordkeeping Requirements; Standards for Small Manufacturers and Processors
RIN 2070-AK29

As part of its effort to update TSCA in line with the Frank R. Lautenberg Chemical Safety for the 21st Century Act, EPA is reviewing the impact of TSCA chemical reporting and recordkeeping requirements on small businesses.  No specific actions have been proposed, but this review will help EPA determine what, if anything, should be done to reduce the regulatory burden small businesses face under current TSCA regulations.

Occupational Safety & Health Administration (OSHA)

OSHA—Final Rule Stage

Standards Improvement Project IV
RIN 1218-AC67

OSHA’s fourth Standards Improvement Project (SIP) aims to remove or revise redundant and inconsistent OSHA safety standards and reduce the paperwork burden on employers subject to OSHA requirements. Among the updates of interest to EHS professionals:
  • Revising lockout/tagout (LOTO) requirements in response to a court decision;
  • Removing of requirement for employers to include employee Social Security Number on certain records to protect employees from identity theft and fraud;
  • Updating the rules relating to x-rays, pulmonary testing, and decompression for employees involved in underground construction;
  • Updating the technological standards for storing x-rays; and
  • Updating standards for employees who work near automobile traffic
A Final Rule is expected in September 2017.

OSHA—Proposed Rule Stage

Occupational Exposure to Beryllium
RIN 1218-AB76

beryllium_exposure_worker.jpgOSHA finalized a new exposure standard and Permissible Exposure Limit (PEL) for beryllium and beryllium compounds in January 2017. After receiving comments, OSHA proposed changes to the requirements in the Final Rule that impact the shipbuilding and construction industry. There is no timeline for a Final Rule at this time. 

Improve Tracking of Workplace Injuries and Illnesses
(RIN 1218-AD16)

Tracking of Workplace Injuries and Illnesses (RIN 1218-AD17)

OSHA has delayed the initial deadline for employers to report electronically on workplace injury and illness data maintained on OSHA Forms 300, 300A, and/or 301.

In addition, OSHA intends to propose reconsidering, revising, or removing provisions of the injury and illness reporting Final Rule. An official proposal is expected in October 2017.

Quantitative Fit Testing Protocol: Amendment to the Final Rule on Respiratory Protection
RIN 1218-AC94

OSHA plans to incorporate new fit-testing protocols into its Reparatory Protection Standard at 29 CFR 1910.134. While a proposed rule appeared in fall 2016, OSHA has no public timeline yet for completing a Final Rule.

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