OSHA GHS Hazard Communication Final Rule Expected In August 2011

The U.S. Occupational Safety and Health Administration (OSHA) has released their timetable on the adoption of the Globally Harmonized System of Classification and Labeling of Chemicals (GHS) into the federal hazard communication standards. After a long rulemaking process, which began with an Advanced Notice of Proposed Rulemaking in September 2006, a Final Rule is expected to be completed in August 2011.

The current OSHA hazard communication standard used in the United States is not consistent internationally and can cause complications when dealing with international trade. Adoption of the GHS into federal requirements will allow US manufacturers, employers and employees to use a hazard communication system that is more recognizable worldwide. Several countries, including the European Union, have already adopted the GHS, with varying implementation schedules.

[Read a Regulatory Briefing on the proposed GHS standard]

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Extension of Comment Period For Mercury And Air Toxics Standards

In response to requests from Congress and to allow additional public comment, EPA has extended the timeline for public input on the proposed mercury and air toxics standards applicable to coal-fired power plants. The 30-day extension will not alter the timeline for issuing the final standards in November 2011.

EPA proposed the national mercury and air toxics standards in March. The standards will be phased in over 3 years, and states have the ability to give facilities a fourth year to comply. Currently, EPA estimates that more than half of all coal-fired power plants already deploy widely available pollution control technologies that are called for to meet the proposed standards. Once final in November, these standards will require the remaining coal-fired plants, roughly 44%, take similar steps to decrease emissions.

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Court Upholds Wisconsin New Source Review Reforms

The Seventh Circuit Court of Appeals has upheld Wisconsin’s adoption of U.S. EPA’s Clean Air Act New Source Review (NSR) reforms. In 2006, Wisconsin adopted and incorporated the federal NSR reforms into its state implementation plan, which EPA approved in 2008. Shortly thereafter, environmental groups submitted to EPA a petition to reconsider its approval of Wisconsin’s NSR reforms. In January 2010, EPA denied the petition. The groups then filed petitions in the Seventh Circuit, seeking judicial review of EPA’s denial of their petition for reconsideration.

The three elements of the NSR reforms at issue were:
1. The use of the “actual-to-projected future actual” test to determine whether a stationary source modification will cause an increase in emissions that is large enough to trigger Prevention of Significant Deterioration (PSD) or Non-Attainment Area NSR permitting obligations.
2. A rule allowing permit applicants to select any 24-month consecutive period out of the last ten years of emissions data to establish a facility’s baseline emissions.
3. A rule allowing the use of a plantwide applicability limitation (PAL).

Throughout the case, environmental groups argued that these three elements could result in an overall increase in emissions from stationary sources in Wisconsin, contrary to anti-backsliding prohibitions in the Clean Air Act. The Seventh Circuit rejected these arguments in favor of the air modeling EPA conducted to provide technical support for its NSR reforms. However, the court did note that, at some point, air modeling will need to be replaced with actual data to demonstrate whether NSR reforms are or are not causing an increase in emissions. Also, EPA’s approval of Wisconsin’s NSR reforms does not relieve the state of its obligations to prevent emissions increases.

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Registration Of Water Withdrawals In Wisconsin Due June 30

The Wisconsin Department of Natural Resources (WDNR) has announced that industrial water users that exceed specific thresholds will need to register with the State by June 30, 2011. All industries that withdraw 100,000 gallons or more of water per day, or 70 gallons or more per minute, from any water source, are required to register with the WDNR. The registration requirement applies to both existing and new withdrawals from either surface or groundwater sources. This requirement also applies to industries that only make temporary withdrawals. Each property that meets the registration threshold must be registered separately

Registered withdrawals will need to measure or estimate the volume of water withdrawn every month and report that information to the WDNR each year by March 1. WDNR intends to send reminders of the annual reporting requirements and the process for submitting the information.

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Metal Fabrication And Finishing NESHAP Compliance Summary

New Federal air regulations for nine metal fabrication and finishing source categories (40 CFR Part 63 Subpart XXXXXX, or “6X”) will take effect soon. All metal fabrication and finishing operations subject to the rules will need to submit formal notifications and be in compliance by July 25, 2011.

The NESHAP applies only to area sources where the primary activity of the facility is in one of the following nine source categories:

(1) Electrical and Electronic Equipment Finishing Operations (including motor and generator manufacture, and electrical machinery, equipment, and supplies, not elsewhere classified);
(2) Fabricated Metal Products;
(3) Fabricated Plate Work (Boiler Shops);
(4) Fabricated Structural Metal Manufacturing;
(5) Heating Equipment, except Electric;
(6) Industrial Machinery and Equipment Finishing Operations (including construction machinery manufacturing; oil and gas field machinery manufacturing; and pumps and pumping equipment manufacturing);
(7) Iron and Steel Forging;
(8) Primary Metal Products Manufacturing; and
(9) Valves and Pipe Fittings.

The regulation contains requirements for five specific processes, listed below. The requirements only apply when a process uses materials that contain specified metal compounds. Low level use of these metals in the processes may be exempt.
• Dry Abrasive Blasting
• Dry Grinding and Dry Polishing with Machines
• Dry Machining
• Spray Painting
• Welding

The regulation requires periodic emissions monitoring for some operations. There also are reports that facilities must submit.
• Initial Notification – due by July 25, 2011
• Notification of Compliance Status report – due by November 22, 2011 and,
• Annual certification and compliance reports.

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EPA Revokes TSCA Confidential Business Information CBI For Certain Chemicals

U.S. Environmental Protection Agency has made public the identities of more than 150 chemicals contained in 104 health and safety studies that had previously been claimed confidential by industry. For these 104 studies, the chemical identity will no longer be redacted. The chemicals involved are used in dispersant formulations and consumer products such as air fresheners, non-stick and stain resistant materials, fire resistant materials, nonylphenol compounds, perfluorinated compounds, and lead.

In 2010, EPA requested that the industry voluntarily declassify unwarranted claims of confidential business information (CBI). The agency also issued new guidance outlining plans to deny confidentiality claims for chemical identity in health and safety studies under the Toxic Substances Control Act (TSCA). Based on this guidance, EPA notified a number of companies in February 2011 that the agency had determined that their CBI claim was not eligible for confidential treatment under TSCA and that EPA intended to make the information public. The health and safety studies include some declassified by the agency and other voluntary declassifications by companies in response to EPA’s 2010 request.

In addition to these actions, EPA has recently taken other steps to make chemical information more readily available. The agency has provided the public with free access to the consolidated TSCA Inventory on the EPA and Data.Gov websites. EPA also launched a new chemical data access tool gives the public the ability to electronically search EPA’s database of more than 10,000 health and safety documents on a wide range of chemicals.

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Suspension Of TSCA Inventory Update Reporting IUR

EPA has passed a final rule amending the Toxic Substances Control Act (TSCA) section 8(a) Inventory Update Reporting (IUR) regulations by suspending the next IUR submission period. This final rule is effective May 11, 2011. The IUR requires manufacturers (including importers) of certain chemical substances included on the TSCA Chemical Substance Inventory (TSCA Inventory) to report current data on the manufacturing, processing, and use of the chemical substances.

In the Federal Register of August 13, 2010, EPA published proposed modifications to the IUR regulations. EPA is suspending the next submission period to allow additional time to finalize the proposed modifications to the IUR regulations, and to avoid finalizing changes to the reporting requirements in the midst of the 2011 submission period. EPA expects to finalize, in the near future, changes to the IUR reporting requirements which will supersede this action.

This rule potentially affects manufacturers (including manufacture as a byproduct) or importers of chemical substances listed on the TSCA Inventory. EPA amended 40 CFR 710.53 to suspend the next submission period within which manufacturers and importers must report IUR data to EPA.

The IUR final rule had established June 1, 2011 to September 30, 2011, as the second of a series of recurring submission periods for the IUR. The current action suspends the second IUR submission period, which is the next IUR submission period. Thus, the submission of IUR data for the next submission period will be neither required nor accepted until the suspension has been lifted or superseded by subsequent EPA action. This is needed due to the length of time which has been necessary to complete work on the proposed modifications and to avoid finalizing changes to the reporting requirements in the midst of the 2011 submission period. This is a one-time suspension of the next submission period only, and it does not alter the timing of subsequent submission periods.

Agency expects, in a final rule, to establish the next applicable submission period and supersede the suspension that the current action puts in place. EPA is completing work on the proposed rule and expects to promulgate a final rule addressing IUR modifications in the near future.

Caltha LLP provides specialized expertise to clients nationwide in the evaluation environmental rules, including TSCA compliance, developing EH&S compliance procedures, and preparing cost-effective EH&S management programs.

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