| NASF Executive Director
EPA Enforcement of TRI Form R Threshold Determinations for “Manufactured Metal Compounds” in Plating Baths
The Environmental Protection Agency (EPA) has recently acted to enforce the reporting obligation contained in Section 313 of the Emergency Planning and Community Right-to-Know Act of 1986 (EPCRA) that applies to surface finishing processes. Although the EPA’s enforcement position is not new, it is of particular concern to captive and job shop surface finishing operations that may not be calculating and accurately documenting threshold determinations of certain manufactured metal compounds on Form R. Special thanks to Don Gallo of Husch Blackwell LLP in Waukesha, WI for his assistance on this issue.
Section 313 of EPCRA, and EPA’s implementing regulations at 40 C.F.R. §§ 372.22 and 372.30, require the reporting of releases of listed hazardous substances by the owner or operator of a facility that has 10 or more full-time employees; is covered by certain SIC codes; meets one of the criteria set forth in 40 C.F.R. § 372.22(b)(1)-(3); and that manufactures, processes or otherwise uses a toxic chemical in an amount exceeding an applicable threshold quantity of that chemical during a calendar year. If a facility is required to report such releases, a toxic chemical release inventory form (Form R) must be submitted to EPA and to the state.
In the plating process intermediate compounds are coincidentally manufactured as the metal is brought into solution. Copper, nickel, zinc and chromium are all processed at the anode of the plating bath and chemical compounds are manufactured via in-bath chemical reactions. The mass of these manufactured compounds must be calculated in determining the mass of toxic chemicals manufactured, processed or otherwise used for threshold reporting determinations.
These chemical reactions and the compounds formed are documented in plating manuals, but may be overlooked in the threshold calculations for Form R reporting. For example, in addition to the calculation of usage for listed EPCRA Section 313 toxic chemicals in purchased mixtures or trade name products, it is necessary to consider the compounds manufactured in the plating bath, such as nickel reacting with sulfate ions to form nickel sulfate and nickel reacting with chloride to form nickel chloride, both of which are included in the nickel compounds toxic chemical listing. The total pounds of nickel compounds manufactured is the sum of nickel sulfate manufactured, in pounds, and nickel chloride manufactured, in pounds, within the plating bath. Failing to include these manufactured compounds in your Form R threshold determinations could result in an incorrect threshold determination.
Guidance on Reporting Requirements and Corrections
NASF has provided guidance on the reporting of manufactured metal compounds and has other tools to assist members with this reporting obligation. In addition, NASF is planning a free webinar this Fall for its members on the reporting of manufactured metal compounds. The webinar will also provide guidance on the options for correcting past Form R submissions, if necessary. Details on the webinar will be provided in the near future.
For more information on the applicable TRI reporting requirements, contact Jeff Hannapel with NASF at firstname.lastname@example.org or Donald P. Gallo directly (262.956.6224 or email@example.com).
President Obama signed major chemicals legislation into law on June 22, 2016. The bill, called the “Frank R. Lautenberg Chemical Safety for the 21st Century Act to reform the Toxic Substance Control Act (TSCA)” aims to modernize how chemicals are managed in the U.S. On June 7, 2016 the Senate passed the compromise TSCA Reform bill by voice vote on June 7, 2016 and the House of Representatives passed this bill on May 24, 2016 by a vote of 403 to 12.
Summary of New Requirements
NASF has been working with several industry coalitions to support this historic bipartisan legislation to revise U.S. chemical management requirements. Based on the language in the legislation, the new requirements would include the following.
- “Conditions of use” (i.e., how a chemical is made, processed, used or disposed of) is used to determine the actual risks posed by chemical substances.
- Mandated EPA risk reviews for new and existing chemicals before they can enter the market.
- For existing chemical substances, EPA will set priorities for the highest risk substances, conduct a risk evaluation, and implement risk management requirements.
- Three years for EPA to complete risk evaluation and have an annual plan identifying chemical substances subject to risk evaluation.
- EPA is required to propose risk management rules for chemical substances within one year of completing risk evaluation, and another year to issue a final rule.
- Address Confidential Business Information claims protecting the identities of chemical substances in commerce.
- Set fees to fund the new chemicals program only after consultation with potentially subject parties.
- Provide preemption for state actions to regulate chemical substances taken before August 1, 2015 to balance state and federal authority to regulate chemicals.
As a result of an initiative by several metals industries, including industry meetings on Capitol Hill during the NASF Washington Forum over the past two years, several provisions include favorable treatment for metals and metal compounds.
- Metals and Metal Compounds – In identifying priorities for and conducting risk evaluations, EPA will be required to use its 2007 Framework for Metals Risk Assessment, which takes into consideration that metals and metal compounds by their nature are persistent in the environment and have unique characteristics. The risks associated with metals and metal compounds must be assessed differently than organic chemicals.
- Expedited Action – Metals are excluded from expedited EPA action on persistent, bio-accumulative and toxic (PBT) chemicals for risk management through regulation. EPA would be required to conduct risk evaluations on metals and metal compounds before proceeding to a rulemaking.
- Preference Provisions – In designating high-priority substances, EPA shall give preference to chemicals listed in the 2014 update of the TSCA Work Plan for Chemical Assessments, such as those with a high persistent and bio-accumulative score, those that are known human carcinogens, and those that have high acute and chronic toxicity. While this is generally favorable to metals and metal compounds, the provision will be a mixed bag for certain metals and metal compounds, depending on their classification.
EPA Challenges Implementing New Requirements
EPA will face numerous challenges in implementing the requirements of the new legislation. The time frames for identifying high priority chemicals for review, the risk evaluations and rulemakings are fairly aggressive. In addition, EPA budget cuts and recent staff retirements will reduce needed to resources to implement the requirements in a timely fashion. EPA may have to reassign staff from other program offices to address its needs in implementing the new TSCA Reform requirements.
Many of the issues impacting the implementation of the TSCA Reform requirements discussed above will take time to develop. NASF will continue reviewing the new legislation and provide further details. If you have any questions or would like additional information, please contact Jeff Hannapel with NASF at firstname.lastname@example.org, or Christian Richter at email@example.com.
New OSHA Electronic Reporting Rule will put Company Records on the Internet, Impose “Whistleblower” Sanctions
Washington, DC, May 12, 2016 – OSHA has published a new reporting rule for employers that could pose challenges for NASF members. The regulation, which is effective August 20, 2016, would require employers to electronically submit their injury and illness records to OSHA. Actual reporting of will be phased in beginning in 2017. In the past, injury and illness records were only accessible to OSHA during inspections.
Under the new provisions, OSHA plans to take that information and post it on the Internet for public access and review. This represents a major and historic shift in how employer records are handled. Among other things, your company may be put in the spotlight as unsafe if your injury and illness records are taken out of context and mischaracterized.
NASF has voiced concerns over the measure since OSHA first proposed it in 2013 through a broad-based industry group called the Coalition for Workplace Safety. The coalition is now considering litigation options against OSHA for exceeding its legal authority.
Why might the rule be a problem for many NASF members?
OSHA Will Post Company Injury and Illness Records on the Internet?
The regulation will apply to both large and small employers. Facilities with 250 or more employees in industries covered by the rule – which OSHA estimates to be around 34,000 locations – must electronically submit to OSHA injury and illness information from OSHA Forms 300, 300A and 301. Facilities with 20-249 employees on OSHA’s list of “high hazard” industries – or potentially another 432,000 locations – must electronically submit information from OSHA Form 300A only. Surface finishing operations are on that list, which can be found here.
As we noted above, industry has registered serious concerns with the rule since OSHA proposed it two years ago. The Coalition for Workplace Safety has noted this week that while OSHA does have the authority under its statute to collect injury and illness information from employers, it does not have the authority to publish it on the internet.
OSHA Will Issue Citations to Employers who Appear to be Discouraging Reporting of Injuries and Illnesses through Incentive Programs
In a new twist that was unexpected and is ripe for a legal challenge, the rule also contains “whistleblower” requirements that did not appear in the original proposed rule in 2013. Under the new rule, OSHA itself can decide to issue a citation to an employer when the agency believes that an employer has discouraged or suppressed an employee from reporting an injury – even if that employee has never filed a whistleblower claim.
With the whistleblower mechanism, OSHA has created for itself a new authority to challenge company safety incentive programs that the agency feels are keeping workers from reporting an injury or illness. So for companies with certain types of programs that reward employees for safety improvements, the rule will make it much easier for OSHA to issue a “whistleblower” citation.
While NASF is still reviewing the just-published rule, this element among others is a major concern and OSHA appears to be overreaching its legal authority. The whistleblower provisions never appeared in the agency’s originally proposed rule three years ago, and although OSHA discussed the issue in a supplemental notice in 2014, industry has not had a chance to meaningfully comment on them.
A Top Priority for OSHA and Labor Unions
The rule has been one of U.S. labor leaders’ most important priorities for the Obama administration, partly as a way to get more access to all employers’ records. The initiative is viewed as a way to boost organizing efforts and to spotlight and “shame” employers by reviewing records and publicizing trends in industries, regions or within certain companies.
With the rule’s announcement, AFL-CIO President Richard Trumka said the rule “will bring workplace injury and illness reporting into the 21st century and provide important new protections to workers who report injuries.” He noted that without the new rule, it’s “impossible to know which employers have good or bad workplace injury records.”
OSHA chief David Michaels this week said the new rule “will create a huge data set that can be used for many purposes, including tracking trends and providing employers with a tool they can use to benchmark against other companies in their industries.”
NASF is Closely Tracking OSHA Developments
NASF has been closely tracking OSHA’s regulatory efforts in the final year of the Obama administration. We will keep you informed on new developments in the electronic reporting rule and other major initiatives in the coming weeks and months.
The Labor Department released this week its long-anticipated and controversial “persuader” rule. The measure mandates that employers disclose the use of outside legal and consulting help in responding to unionization attempts in the workplace.
The rule, first proposed in 2011, would expand existing federal reporting requirements under the Labor-Management Reporting and Disclosure Act. On a practical level, an employer would have to reveal any hiring of a third-party labor relations attorney or other consultant to try to prevent its employees’ unionization attempts, if the consultant engages in any activities that go beyond the plain meaning of “advice.” The new requirements apply even if a consultant has no direct contact with workers.
Labor groups such as the AFL-CIO and International Association of Machinists praised the rule’s release as increasing transparency on employer activities, while major industry advocates such as the U.S. Chamber of Commerce criticized the rule, arguing the new rules are simply a one-sided assist to organized labor and stifle employer free speech.
The rule, which would apply to any agreements made after July 1, 2016, states that an employer and consultant will have to report to the Department of Labor when they’re engaged in the following:
- planning or conducting employee meetings;
- training supervisors or employer representatives to conduct meetings;
- coordinating or directing the activities of supervisors or employer representatives;
- establishing or facilitating employee committees;
- drafting, revising or providing speeches;
- developing personnel policies designed to persuade employees;
- identifying employees for disciplinary action, reward or other targeting.
In the rule, the Department of Labor estimates that nearly 90 percent of employers hire consultants to help counter union organizing campaigns.
The American Bar Association has criticized the measure, saying it damages lawyer-client privilege. There are certain exemptions in the rule that protect a narrow range of employer activity.
On Capitol Hill, some congressional Republicans are preparing legislation to overturn or block the rule.
For more information on the “persuader rule” and a range of new labor policy developments that are transforming the workplace, make plans to attend the NASF Washington Forum in April.
Wednesday, April 20 Afternoon Session
Washington, D.C., March 23, 2016 – Surface technology industry leaders will welcome former U.S. Ambassador James Smith for remarks at the upcoming NASF Washington Forum, scheduled for April 19-20 at the Ritz Carlton – Pentagon City. Smith, who will speak on U.S. and international trade issues, now serves as President of C&M International (CMI), the international policy consulting firm affiliated with Crowell & Moring LLP. A seasoned diplomat with international business experience, Smith is a former U.S. Air Force brigadier general and F-15 fighter pilot who served in Operation Desert Storm.
“NASF is truly pleased to host Ambassador Smith for this year’s Forum. The trade landscape presents opportunities as well as challenges to the value chains we operate in, wherever we are in the surface technology world,” said Erik Weyls, NASF President. “Being better informed on policy to make strategic business decisions is what this event is all about, and we’re looking forward to hearing more on the outlook ahead in this election year.”
Smith served as U.S. Ambassador to Saudi Arabia from 2009 to 2013. While in the Air Force, Smith commanded the 94th Fighter Squadron, the 325th Operations Group, and the 18th Fighter Wing in Okinawa, Japan, where he led the largest fighter wing in the U.S. Air Force. In this role, he worked to expand relations with the local communities through a campaign called “Bases Without Fences.” In senior leadership positions for multinational corporations, Smith spearheaded efforts involving strategic planning, manufacturing, international business development, and political risk analysis.
Smith is a distinguished graduate of the U.S. Air Force Academy. In addition, he earned an M.A. from Indiana University in Bloomington, Indiana, and is a graduate of the Naval War College and the National War College, where he served as a professor of national security strategy.
For more information or to register for the upcoming NASF Washington Forum, click here or contact Cheryl Clark at (302) 436-5616.
Tanya Bolden, director of Corporate Responsibility Products and Services at the Automotive Industry Action Group (AIAG), will speak at the SUR/FIN Sustainability Summit on Monday, June 6, on emerging corporate sustainability trends for automotive OEMs and the supply chain. As leader of AIAG’s strategic programming, Bolden works with teams of volunteers from AIAG member companies to develop and implement guidelines and share best practices to help companies manage their legislative, regulatory, and customer requirements on issues such as supply chain sustainability, environmental responsibility and business ethics. She joined AIAG in 2010 from General Motors Co., where she was corporate responsibility manager, responsible for a range of global corporate issues impacting the company. She specifically was responsible for the social sector, including industry collaborations, stakeholder engagement, reporting, risk assessment and cross-functional leadership interface. Bolden worked at GM for 20 years in a variety of positions. She holds a bachelors of science from Michigan State University and a master of science in administration from Central Michigan University.
California’s EPA’s Office of Environmental Health Hazard Assessment (OEHHA) announced in February it will review several chemicals for possible listing under Proposition 65. These chemicals include: nickel and nickel compounds; perfluorooctanoic acid (PFOA) and its salts; perfluorooctane sulfonate acid (PFOS) and its salts; and n-hexane.
The state launched a preliminary review of the hazards for nickel and nickel compounds and identified them as possibly harmful to pregnant women and children, or as “developmental and reproductive toxicants.”
NASF and its strategic partner, the Nickel Institute, submitted comments in response and solicited support from other industry allies in October 2015 on whether the compounds should be elevated to priority status, and provided further information at a public meeting held by the agency’s scientific panel in November 2015. During that meeting, the panel informally identified nickel and nickel compounds as a medium priority reproductive toxicity hazard. The recent “data call in” asked for new scientific information on hazards of nickel compounds by April 4, which OEHHA will review as it considers a formal state listing under Proposition 65.
If OEHHA decides to list nickel and nickel compounds as a reproductive toxicant, the Proposition 65 labeling and notification requirements will be applicable to all products in California that contain nickel. The listing would also stigmatize nickelcontaining products for potential de-selection in California and elsewhere.
Even though the listing is a hazard identification and not a risk assessment, other jurisdictions may use it to impose unjustified risk-based restrictions and controls on the use of nickel and nickel compounds. NASF expects the next stage of the listing process to take several months. In the meantime, the association will be working closely with the Nickel Institute to prepare appropriate responses and comments on the potential reproductive toxicity of nickel and nickel compounds. If you have any questions or would like additional information on this issue, contact Christian Richter at crichter@thepolicygroup. com or Jeff Hannapel at firstname.lastname@example.org.
The U.S. EPA proposed updated water quality criteria for cadmium that would relax the benchmark for protecting aquatic species from chronic exposures to cadmium in freshwater from 0.25 μg/L to 0.73 μg/L, and for acute exposure from 2.0 μg/L to 2.1 μg/L. EPA also proposed a more stringent cadmium standard for estuarine and marine waters with criteria to protect aquatic species from chronic exposure from 8.8 μg/L to 8.3 μg/L and for acute exposure from 40 μg/L to 35 μg/L. The proposal defines chronic risks as exposures of duration of four days or longer and acute risks as an exposure of one hour. Prior to the proposal, acute risks were considered exposures within a 24-hour period. When EPA last updated the cadmium water quality standard in 2001, it stated that stricter criteria were necessary because new data showed that exposure to cadmium over an extended period of time could have negative health impacts on aquatic life.
The 2001 cadmium water quality criteria lowered the chronic exposure limit by orders of magnitude, prompting sources in the wastewater industry at the time to claim that these criteria would be impossible to meet. While EPA’s risk-based criteria are not binding, states often use them to develop enforceable water quality standards. States can also revise EPA’s water quality criteria based on local concerns or develop their own, but EPA must approve alternate approaches. Other states and the industry-based Utility Water Act Group (UWAG) argue that the proposal is too stringent and have raised several questions about how the criteria were calculated. The industry group also challenged EPA’s decision to change the duration of acute exposure from 24 hours to one hour without sufficient evidence, as well as EPA’s more costly monitoring requirements. UWAG concluded that EPA appeared to be making a policy decision to revise the acute exposure without scientific evidence on cadmium toxicity to support it.
Illinois and Wisconsin also questioned EPA’s criteria claiming that the chronic exposure level was based on a flawed toxicity test that was published more than 15 years ago by the U.S. Geological Survey (USGS). According to the states, the USGS study should be retested, a position that it claims is supported by EPA’s Office of Science and Technology. EPA is in the process of reviewing public comments on the proposal. It is not clear if EPA intends to make any significant changes to the proposal.
The agency faces a March 30, 2016 courtordered deadline to issue the new criteria. If you have any questions or would like additional information on this issue, contact Jeff Hannapel with NASF at email@example.com.
The U.S. Department of Justice (DOJ) recently joined with the Department of Labor to announce a new initiative to increase the number of criminal prosecutions for worker endangerment and worker safety cases. The Occupational Safety and Health Act of 1970 (OSH Act) provides for criminal sanctions for three types of conduct impacting worker safety:
(1) willfully violating a specific standard, and thus causing the death of an employee;
(2) giving advance notice of an OSHA inspection activity; and
(3) falsification of documents filed or required to be maintained under the OSH Act.
Because these violations are misdemeanors punishable by a fine of no more than $10,000 and/or imprisonment for no more than six months, there are very few reported criminal prosecutions under the OSH Act.
In an effort to increase the number of criminal prosecutions for worker endangerment and worker safety issues, the DOJ issued a memorandum to 93 U.S. Attorneys’ Offices and executed a Memorandum of Understanding (MOU) with the U.S. Department of Labor (DOL). In the memorandum to the U.S. Attorneys, DOJ urges them to charge companies with other crimes with felony provisions that frequently occur with OSH Act violations, such as false statements, obstruction of justice, witness tampering, and conspiracy.
DOJ also authorizes the Environmental Crimes Section of DOJ’s Environment and Natural Resources Division to coordinate with the appropriate U.S. Attorney’s Office to handle the investigation and prosecution of cases under the OSH Act and other laws. For example, DOJ may be able to environmental crimes into account when prosecuting OSH Act violations. A copy of the memorandum to the U.S. Attorneys is available here.
In conjunction with this memorandum to the U.S. Attorneys, DOJ and DOL entered into a MOU to increase the number of criminal prosecutions by DOJ. The MOU establishes a process and framework for notification, consultation and coordination between DOJ and DOL to aid both agencies in implementing federal workplace health and safety statutes more effectively. A copy of the Memorandum of Understanding is available here.
The initiative follows on the heels of provisions Congress passed in last year’s spending bill and signed by the President in December 2015, which would increase maximum civil penalties in OSHA citations to a maximum of 82% starting later this year. As a result, employers will need to continue to focus on its environmental, health and safety compliance programs to avoid more stringent penalties for any potential violations. If you have any questions or would like more information regarding this issue, please contact Christian Richter at firstname.lastname@example.org or Jeff Hannapel at email@example.com.
Join industry leaders and your peers at the Washington Forum on April 19-21 for briefings on what policies will be impacting the industry this year and take the opportunity meet with lawmakers and federal agency officials.
The annual event is held to discuss industry issues as well as communicate the value of the surface finishing industry and the vital role it plays in U.S. and global manufacturing.
In addition to receiving in-depth updates on pending regulation, legislation and litigation, participants will hear insightful commentary on issues facing decision makers on Capitol Hill from lunch keynote speaker Stuart Rothenberg. Mr. Rothenberg is Founding Editor and Publisher of the Rothenberg & Gonzales Political Report and one of the nation’s most popular political analysts.
The popular NASF Capitol Hill Reception will be held during the Forum will feature Representative Adam Schiff (D-CA), who serves as ranking member on the Permanent Select Committee on Intelligence.
Visit nasfwashingtonforum.com for complete details and registration information.
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