The Trump Administration and Republican leaders in Congress have launched 2017 with several early actions on an agenda that, if implemented, would represent a tectonic shift in the U.S. regulatory landscape, particularly in the areas of environment, labor, health and safety.
Nominees and Advisors
The president’s nominees to head key agencies – Oklahoma Attorney General Scott Pruitt for the Environmental Protection Agency and burger chain executive Andy Puzder for Department of Labor – are widely known critics of the federal bureaucracy and government overreach. Pruitt led states’ efforts in recent years in major lawsuits against EPA. Puzder, who battled regulation in California, has warned that overly strict labor laws will lead employers to replacing workers with machines. Both nominees are now awaiting Senate confirmation.
The president also recently named activist investor and billionaire Carl Icahn as his special advisor on regulatory overhaul. He promised a regulatory moratorium and a rollback of key Obama Administration executive orders and memos on a host of topics. That’s exactly what’s transpired since Trump took office.
The President’s EPA transition team chief, libertarian think-tank advocate Myron Ebell, recently called the environment movement “the greatest threat to freedom.” He suggested last week that EPA’s budget should be cut by two-thirds, from 15,000 to 5,000 employees.
Executive Orders and a Regulatory Freeze
The President just this week signed an executive order promising that going forward for each new regulation issued, two old regulations would have to be eliminated. In announcing the policy, he noted “we’re cutting regulations massively for small business – and for large business” and that the annual impact on the economy of government rules would be “no greater than zero.”
The order follows an Inauguration Day memo from the President’s Chief of Staff Reince Priebus to all departments and agencies. The directive would freeze a number of recently finalized regulations for a 60-day review period. It also instructed agency heads to also consider delaying effective dates for regulations beyond the 60-day time period. The temporary moratorium on regulations is not uncommon for incoming presidents.
Indeed, several major rules that the Obama administration was speeding to the finishing line will be held up. Among them is the Department of Labor’s controversial overtime rule to boost worker pay, along with several EPA regulations. Another on the slate is a rule to make hardrock mining operations show the financial ability to pay for contamination clean-up if closed. This is the first in a series of rules that EPA has anticipated would affect a range of industries in the future, including surface finishing.
Regulatory Reform Legislation on Capitol Hill
On Capitol Hill, Republicans with control of both legislative chambers on Capitol Hill have moved swiftly in the first few weeks of the new Congress to reshape the future of regulation. In its first week back in Washington, the House began action on and approved several regulatory relief bills, including:
- the REINS Act (Regulations from the Executive in Need of Scrutiny) – requires Congress to approve any agency rule estimated to have more than a $100 million cost on the U.S. economy;
- the Regulatory Accountability Act – requires agencies to complete a number of steps on a proposed rule, including weighing the direct and indirect costs and benefits of their rules on jobs and economic growth; and
- the Midnight Rule Relief Act – allows Congress to repeal in a single vote any rule finalized in the last 60 legislative days of the Obama administration.
Since passage in the House, the Senate is now reviewing these measures, but Democrats have promised opposition there. The bills were passed by the House in earlier Congresses but were never previously acted on by the Senate.
In addition, House leaders have assembled a first short list of major Obama-era rules for repeal in the coming days. Republican leaders have promised to use their legal authority to scuttle the regulations under a rarely used legislative tool, the Congressional Review Act. The law, enacted in 1996, has been successfully invoked by Congress only once. In 2001, Republicans used it as President George W. Bush took office to overturn a major OSHA workplace ergonomics standard from the Clinton Administration.
EPA – Selected Regulatory Targets
Several major environmental regulations that the Trump administration has targeted for elimination, reform or delay include EPA’s Clean Power Plan to set carbon emission limits on power plants, the agency’s revised ozone standard and EPA’s controversial Clean Water Rule, which would determine which rivers, lakes, streams and ponds are subject to federal jurisdiction. The U.S. Supreme Court just this month agreed to hear arguments in litigation over the water rule. For surface finishing, EPA is still reviewing whether to propose tighter wastewater discharge limits for the industry, and NASF will continue to work closely with EPA and the Trump administration to inform the agency’s decision.
Department of Labor and OSHA – Selected Regulatory Targets
One of the most controversial labor regulations advanced by the Obama Administration has been the overtime rule. The rule, which would have raised the salary threshold for exemption from overtime pay, was blocked by a Texas district court judge just before it went into effect on Dec. 1, 2016. Both the incoming White House and Republicans in Congress have argued the rule should be scrapped, along with a growing list of other Obama-era labor rules and decisions from DOL, the National Labor Relations Board and the Equal Employment Opportunity Commission.
On workplace safety matters, the Occupational Safety and Health Administration’s efforts to make major changes in recordkeeping and reporting for business have been opposed by a range of industry groups, including NASF. Among these have been OSHA’s final electronic reporting rule to put injury and illness records of employers on the internet, and the agency’s pending final rule that would allow OSHA to cite employers for alleged injury and illness recordkeeping violations up to five years old, an extension much longer than the current limit of six months.
It’s only January, and a profound shift is underway in Washington. The regulatory agenda will be in a center spotlight this year, along with further action on tax reform, trade, immigration, health care and infrastructure. NASF has been closely engaged at the agencies and will continue to monitor and inform decisions that impact the industry as the year unfolds. Look for new updates on specific issues in play in the coming weeks and months. In the meantime, we look forward to having you join us for the NASF Washington Forum in the nation’s capital on Apr. 25-27, 2017. For more information, go to www.nasf.org.
With Trump Regulatory Freeze, NASF Watching New EPA Superfund Clean-Up Rule’s Impact on Surface Finishing
With the Trump administration’s aggressive focus on regulatory overhaul, one of several dozen issues the NASF has been watching is an otherwise obscure rule for the hardrock mining industry. But in early December, the U.S. Environmental Protection Agency proposed a new Superfund cleanup rule that NASF members should watch closely. The new proposal stems from an agency hazardous waste initiative under the Obama Administration that covers surface finishing as well as several other manufacturing sectors.
The latest proposed rule, which industry anticipated throughout 2016, would subject hard rock mining companies to a determination of future cleanup responsibilities and require each company to obtain bonds or insurance or self-assure to cover the cost of that clean up.
This is an important development for NASF members and finishing operations nationwide. A few years ago, EPA listed metal finishing on the list of sectors that would be targeted for what would be new, extremely burdensome requirements under the federal Superfund law that could potentially bankrupt both small and large companies.
NASF Has Advised Dropping Financial Assurance Requirements
NASF has been monitoring the rule’s progress for several years and held discussions with EPA, arguing that the agency’s approach was misguided on several fronts. EPA more recently expanded the metal finishing category to cover more facilities in the larger fabricated metals sector.
Outgoing EPA Assistant Administrator Mathy Stanislaus, who heads the federal hazardous waste program, argues that the agency’s approach of requiring a company to secure a bond, letter of credit or other financial assurance mechanisms would lead to more cleanups in the United States.
“This proposed rule, once finalized, would move the financial burden from taxpayers and ensure that industry assumes responsibility for these cleanups,” Stanislaus said. “The proposed rule would also give companies an economic incentive to use environmentally protective practices that can help prevent future releases.”
Mining Industry Shared “Case Study” with NASF Members in Washington
This past year, attendees at the NASF Washington Forum heard from National Mining Association’s Tawny Bridgeford, who highlighted the mining industry’s experience as a “case study.” She noted that the onerous EPA requirements in the pipeline for miners would severely impact surface finishing facilities if the rules weren’t curbed early in the process.
The proposed rule, which was moving to proposal stage in December, formally identified the next group of sectors in the pipeline for financial assurance rules, specifically electric power generation, transmission and distribution, and petroleum and coal products manufacturing.
The agenda of the new Trump administration will clearly have some bearing on the outcome of the mining and other regulations during 2017. Because the agency released its proposal so late in the year, the new temporary regulatory moratorium just announced by the White House over inauguration weekend is expected to delay and possibly derail it. More shortly.
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 email@example.com or Donald P. Gallo directly (262.956.6224 or firstname.lastname@example.org).
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 email@example.com, or Christian Richter 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.
EPA has just finalized a new electronic reporting system for industrial wastewater dischargers. On October 22, 2015, the agency formally issued its national Pollutant Discharge Elimination System (NPDES) electronic reporting rule.
The electronic reporting requirements apply to:
- NPDES-permitted facilities,
- facilities covered under NPDES general permits,
- industrial users discharging to publicly owned treatment works (POTWs) without approved
- local pretreatment programs,
- state, territorial and tribal NPDES programs, and
- federal facilities with NPDES permits.
Within one year of the effective date (i.e., by December 21, 2016) NPDES regulated entities that are required to submit Discharge Monitoring Reports (DMRs) must do so electronically. In addition, authorized NPDES programs must start electronically transmitting to EPA their state performance data by December 21, 2016. Within five years of the effective date, authorized NPDES programs must begin electronically collecting, managing and sharing all reports, data and other information from regulated entities.
Does Your Company Discharge to a Local Wastewater Treatment Plant?
The new electronic reporting requirements do not specifically apply to industrial users that discharge to POTWs with approved local pretreatment programs (which generally includes most surface finishing operations). Electronic reporting will eventually be required for these industrial users because POTWs must collect, manage and submit their information to EPA and will most likely require all industrial users to submit information to POTWs electronically.
EPA is providing flexibility for facilities and authorized NPDES programs to implement the electronic reporting requirements, including the use of: (1) an EPA electronic reporting tool, (2) a tool developed by an authorized state NPDES program, and (3) tools developed by third-party vendors that meet the requirements of the rule. EPA estimates that the electronic reporting rule will help streamline the permitting process, make reporting easier, provide better data and save authorized state NPDES programs over 22 million dollars annually.
If you have any questions or would like more information regarding the EPA’s new electronic reporting rule for NPDES regulated entities, please contact jeff Hannapel with NASF at firstname.lastname@example.org.
A federal appeals court in October blocked EPA from enforcing one of the agency’s most controversial rules in years – the “Waters of U.S.” or WOTUS regulation. The decision effectively halts the enforcement of the rule until it gets additional review by the federal courts.
EPA and the Corps of Engineers earlier issued a final rule on June 29, 2015, an action that U.S. industry and agriculture leaders argued would dramatically expand federal jurisdiction over waters of the U.S. under the Clean Water Act (CWA). Thirty states, over 20 industry and agricultural groups, and environmental groups filed legal challenges to the final rule. In addition, several legislative proposals are pending in Congress to restrict or halt EPA’s action in the final rule.
On the legal front, lawsuits have been filed to challenge the Rule in both federal district courts and the federal circuit courts of appeal. The rule had already been blocked in 13 states by a federal district court, but there has been uncertainty under the CWA about whether the challenges should be heard in the federal district courts or federal circuit courts. Therefore, while the 6th Circuit federal appeals court issued a nationwide stay of enforcement of the rule, the stay is granted “pending determination of [the court’s] jurisdiction.” The court anticipates issuing a decision on the jurisdictional matter soon.
In sum, the October decision concluded that the challengers, a group of 18 states, were unlikely to face immediate irreparable harm from the rule, but there was also no evidence that the nation’s waters would suffer “imminent injury” if the regulation was put on hold. “A stay allows for a more deliberate determination whether this exercise of executive power … is proper under the dictates of federal law,” the court said in its majority opinion.
In the interim, the rule is stayed nationwide pending further consideration from the federal courts. Even is the rule is permanently stayed or overturned, EPA and the U.S. Army Corps of Engineers would have an opportunity to address the concerns raised by the courts and reissue a revised rule.
As many in the industry know, the U.S. Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (Corps) issued a final rule over the summer that would dramatically expand the federal Clean Water Act’s definition of “waters of the United States.” The agency’s new definition could subject a broad range of routine activities of industrial facilities, commercial establishments, agricultural operations and local governments to the water law’s jurisdiction and triggers the need for federal permits for these activities.
Opposition and Legal Challenges
EPA received over one million comments on the rule, including those from governors and attorneys general from several states that requested EPA to withdraw the rule because it seeks to broaden federal authority over waters illegally. Thirty states, 20 industry and agricultural groups, and environmental groups have filed legal challenges to the final rule.
In addition, several bills have been introduced in Congress to block implementation of the measure. Twenty-nine states also asked EPA in a July 28, 2015 letter to postpone the implementation of the rule for at least nine months pending the outcome of the many lawsuits challenging the regulation.
August 2015 Federal Court Decision
On August 27, 2015 a federal district court in North Dakota granted a motion to block the implementation of the final rule in 13 states ruling that the risk of irreparable harm to States is both imminent and likely. The court also rejected EPA’s argument that the rule would benefit the public by protecting more waters in the U.S. EPA is seeking an appeal of this decision in the U.S. Court of Appeals. Two other federal courts dismissed petitions seeking similar injunctions based on judicial jurisdictional issues and did not address any of the merits of the cases.
EPA has noted that the federal court’s ruling is limited to only 13 states and that the rule remains in effect in the other 37 states. The Agency continues to hold training seminars and develop guidance documents to implement the rule. In addition, EPA intends to post the status of jurisdictional determinations for water features based on the different categories of waters subject to the rule.
Critics and supporters of the rule both contend that the fractured implementation of the final rule will cause even further confusion regarding the jurisdictional determinations for waters of the U.S. in different parts of the country. As a result, it appears that it will be some time until much needed clarification is provided in this matter. In the meantime, surface finishing operations, depending on their geography, should be vigilant in considering which of their activities may trigger federal permit requirements pursuant to this rule.
If you have any questions or would like additional information regarding this rule and these new developments, please contact Jeff Hannapel with NASF at email@example.com.
In July the the U.S. Court of Appeals for the D.C. Circuit denied NASF’s legal challenge to the U.S. Environmental Protection Agency and upheld the final federal chromium electroplating and anodizing air emissions rule in its entirety. To assist our members in maintaining compliance, we have assembled this guide containing the ruling provisions and important compliance dates.
If you have any questions or would like additional information regarding the new requirements of the chromium electroplating and anodizing NESHAP and potential compliance options, please contact Jeff Hannapel with NASF at firstname.lastname@example.org, or Christian Richter at email@example.com.
New report this week highlights concerns, proposed restrictions could come in 2016
The EPA has issued a new set of reports that highlight concerns over metal finishing wastewater discharges. The package, issued by the agency’s Office of Water, summarizes the agency’s progress on evaluating and potentially regulating several priority industries. It was formally issued as the Final 2014 Effluent Guidelines Program Plan and 2014 Annual Review Report.
Over a decade ago, NASF challenged a major effort by EPA to finalize new nationwide metal finishing discharge standards as part of the Metal Products and Machinery (MP&M) rule. Based on several years of industry discussions and a large coalition effort led by the NASF to ensure EPA performed a proper analysis of the industry’s operations, the agency concluded then that no further regulations were needed.
EPA Points to Changes in the Industry
In EPA’s recent review of the industry, it concluded that the industry has not grown significantly in the last 30 years but has consolidated into larger companies that tend to compete better with the expanding global market. However, the agency contended that the industry is using new chemicals that improve surface finishing quality and eliminate the use of toxic chemicals, thereby changing the characteristics of metal finishing wastewater.
EPA also concluded that although a majority of the industry continues to meet the current federal metal finishing limits using conventional treatment technologies, at least some portion of the industry is employing more advanced wastewater treatment technologies, including zero discharge.
Key Topics for Further Agency Review
While EPA has not yet determined if it needs to revise the standards for metal finishing, the Agency identified the following topics that warrant further review.
- Potential new pollutants of concern not currently regulated that are increasingly used in metal finishing processes;
- Prevalence of potential pollutants of concern associated with wastewater generated from the use of wet air pollution control devices to control air emissions from metal finishing operations;
- The application of advanced wastewater treatment technologies and the prevalence of zero discharge practices in the industry;
- The need to eliminate or phase out 413 standards and require all metal finishing operations to comply with 433 standards.
Will New Limits Be Necessary?
Based on a review of these issues, EPA will determine if revisions are needed. NASF has been collecting data on the industry’s waste water treatment practices and has engaged EPA officials on this issue. NASF will be providing more accurate information on current industry practices on waste water treatment technology and is having further discussions with EPA and POTW officials regarding this issue.
The Final 2014 Plan, the Annual Review Report, EPA’s Fact Sheet, and other supporting documents, can be found on their website.
EPA also issued a Notice of Availability in the Federal Register announcing this action that is available on gpo.gov.
NASF will continue educating EPA officials regarding current industry practices for waste water treatment practices and working closely with POTW and state regulatory officials. If you have any questions or would like additional information regarding this issue, please contact Jeff Hannapel at firstname.lastname@example.org, or Christian Richter at email@example.com.
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