By now everyone in the industry has heard about GHS and how it will affect the management of hazardous chemicals in the US. Since my training and expertise is currently limited to the regulations of the USEPA (and authorized States) and the PHMSA of the USDOT, I have strived to stay away from this revision to OSHA’s regulations. However, too many questions from too many people has convinced me that I can ignore it no longer. Also, though currently minor, GHS has affected the Hazardous Materials Regulations of the PHMSA/USDOT. And though not likely to become significant in the near future, there is the distinct possibility that future updates to the HMR will be affected by the current GHS. While not an expert in GHS and HazCom, the purpose of this article is to assemble in one place a variety of questions and answers those in the regulated industry are likely to have. Read the rest of this entry »
Archive for category Regulated Industry General Interest
FAQ’s About GHS, HazCom, and its Affect on the Hazardous Materials Regulations of the USDOT/PHMSA
Apr 3
Read on for the news release from the USEPA, then read my articles that explain the reporting requirements that Amalgamated Sugar did not complete:
- Reporting Releases of Hazardous Substances and Extremely Hazardous Substances
- The Notification Requirements for Reporting a Release Under CERCLA & EPCRA
News Release: Amalgamated Sugar settles for failure to immediately report the release of chlorine gas into the environment
03/13/2013
Contact Information: Hanady Kader, EPA Public Affairs, 206-553-0454
(Seattle—March 12, 2013) The U.S. Environmental Protection Agency (EPA) reached a settlement with Amalgamated Sugar Company LLC (Amalgamated Sugar) for failing to properly report the release of dangerous chlorine gas at its Paul, Idaho facility. Amalgamated Sugar, a sugar manufacturing facility that processes sugar beets, will pay $18,000 in penalties.
According to the settlement, plant operators did not immediately notify federal and state authorities about the chlorine gas release.
“Companies need to notify the appropriate agencies right away so emergency personnel can quickly respond to these hazardous chemical releases,” said Ed Kowalski, Director of EPA’s Office of Compliance & Enforcement in Seattle. “Failure to do this puts not only employees, but the community at risk.”
The release on February 7, 2012, was caused when a chemical truck driver mistakenly unloaded hydrochloric acid into the tank containing sodium hypochlorite. When mixed, the chemicals caused a violent reaction which blew the access lid off the tank, emitting 43 pounds of chlorine gas into the atmosphere. According to Amalgamated Sugar, the driver was injured and evacuated by ambulance. The company’s notification to state and federal authorities was over 46 hours late.
Chlorine is a toxic gas that attacks skin, eyes, throat, and lungs and can cause serious injury or death in extreme cases.
The chlorine release and the failure to notify appropriate agencies are violations of the federal Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) and the Emergency Planning and Community Right-to-Know Act (EPCRA).
For information on EPA’s Emergency Planning and Community Right to Know Act, visit http://www.epa.gov/oecaagct/
For more about toxic effects of Anhydrous Ammonia (NIOSH GUIDE): http://www.cdc.gov/niosh/npg/
Compliance with the regulations of the US EPA and the US DOT – not to mention the Occupational Health and Safety Administration (OSHA) – requires knowledge of those regulations. Knowledge of the regulations can only come after you have familiarized yourself with their structure and content. And familiarity requires access. The objective of this article is to inform you of a free source of the regulations of the US DOT, US EPA, and other Federal agencies.
The general and permanent rules of all Federal Agencies are first printed in the Federal Register and then codified in the Code of Federal Regulations (CFR). It is the responsibility of the Government Printing Office (GPO) – an agency of the legislative branch of the Federal Government that provides printing and binding services for congress - to make the CFR available to interested parties. In the old days (remember the 90′s?) this would have meant printing and distributing a hardcopy on the printed page. But in this modern age of the internet the CFR is available to you on-line: free, easily accessible, and with tools to help make sense of it.
The CFR is available from the GPO in two formats both of which are available through the GPO’s Federal Digit System (FDsys):
The annual edition of the CFR is available online for calendar years 1996 through 2012. It contains the 50 titles of the CFR which are updated once each calendar year on a staggered basis. The annual update cycle is as follows:
- Titles 1-16 are revised as of January 1
- Titles 17-27 are revised as of April 1
- Titles 28-41 are revised as of July 1
- Titles 42-50 are revised as of October 1
This version of the CFR can be downloaded in several formats: pdf, text, & XML. Of the three, only pdf and text have legal status as parts of the official online format of the Code of Federal Regulations (User Guide Document – CFR XML Rendition). In addition to its legal status, pay attention to the annual updates to the CFR based on the title:
- OSHA regulations are in Title 29 – Annual update on July 1.
- US EPA are in Title 40 – Annual update on July 1.
- US DOT are in Title 49 – Annual update on October 1.
Also available is an electronic version of the CFR known as the e-CFR. This version includes all 50 titles of the CFR but has the advantage of more frequent updates (daily) than the annual edition of the CFR. In addition to the daily updates its advantages include user-friendly tools for searching the regulations. You may also use standard web-browser tools such as search, print, bookmark, or hyperlinks to make the e-CFR more useful to you.
Unfortunately the e-CFR is an editorial compilation of the CFR and Federal Register amendments, “It is not an official legal edition of the CFR”. In other words its a great source of information but before you make any difficult regulatory decisions, be sure you have researched the official legal edition of the annual edition of the CFR.
I first met the Judge when I attended one of his live training seminars in Chicago, IL in August of 2009. It was well attended and the Judge went through his prepared material like the professional that he was. As I left with my two training completion certificates – one for the four hours of RCRA training and another for the four hours of HazMat Employee training – and a head full of information, I couldn’t help but think that I could conduct a training session like his. Unlike the Judge, I didn’t intend to go it alone; instead I thought of it as a project for me with my employer at that time, Fehr-Graham and Associates. Looking back, it was the Judge’s confidence and knowledgeable presentation of the material that made it look so easy, like it was something I could do.
I later had the privilege to have a short conversation with the Judge prior to his preparation for the next day’s training. During our short time together he was polite, open, and engaging. Keep in mind that he knew he was speaking with someone that wanted to enter the same market as his and could become a competitor. The fact that he shared anything with me at all speaks to his generosity and kindness. The conversation further reinforced my belief that a training service was something that Fehr-Graham could accomplish, with me as the training provider. To this day, I still use some of the tips and techniques I learned from the Judge during our meeting.
Fast forward a few months to November 2010, and my plans had changed; I intended to leave Fehr-Graham and start my own training business: Daniels Training Services. Once again, the Judge was my inspiration. I don’t know how he ran his business, but it appeared to be largely a one-man operation; which is what I intended for myself. The fact that he had gone up against some of the big corporations that provide training and had carved out a niche resonated with me; I thought with hard work and time I could do the same. I had – and have – however the advantage of the internet with all its free or inexpensive resources to assist a regulatory compliance business like mine. It is notable that none of these things were available when the Judge started in the late 1980′s.
In the one and a half years since I started this business, the Judge has been the yardstick to which I measure my success and my guide to how I operate. ”Is my website ranked as high as his?” ”What cities is he scheduled to visit? And when?” ”What would the Judge do?”
Like anyone who ever strove to accomplish something, I’m sure the Judge had his critics – I was one of them at times – but those criticisms, and any remaining critics, fade to irrelevance when compared to his creation of a business that was recognized nation wide.
I had hoped to meet the Judge again and, if possible, have another conversation. My questions would have been different, reflecting my hard-won experience over the intervening years, but I suspect he would have been the same: polite, affable, professional. The truest statement I can make and, I think, the best compliment I can give to his memory is that I wish I could talk to Judge Ken Reilly just one more time.
The Honorable Kenneth F. Reilly passed away on June 23, 2012 in Conroe, TX from heart failure.
How long are you required to retain a Material Safety Data Sheet (MSDS) for the hazardous materials in use at your facility? Forever? 30 years? Only until you stop using the material? A complete answer to that question requires a full understanding of the applicable standards of the Occupational Safety & Health Administration (OSHA) and the intent of the regulations.
The quick answer is: yes, 29 CFR 1910.1020 requires you to maintain some record of the identity of the Toxic Substance or Harmful Physical Agent to which employees are exposed for 30 years after the last day of its use. Note that it does not mandate the use of an MSDS, just “some record”, it is on this point that this simple requirement can become complicated. OSHA’s intent is to have the employer make important health-related information accessible to current and former employees for as long as it thought might be necessary, this created the retention period of 30 years. OSHA also wanted employers to include information about when and where the chemical or substance was used. This last point was resisted by employers, so OSHA compromised and gave employers two options for retaining the information (OSHA letter of interpretation 11.8.85):
- The MSDS, or
- The identity of the material (technical name if known) and information about where and when it was used.
Whichever method you choose, your obligation to maintain the information doesn’t end with closure or sale of the facility. In such an event you must transfer all records to the new employer or to the Director of the National Institute for Occupational Safety and Health (NIOSH).
You must keep these records accessible to current and former employees. If you are unable to provide access to these records within 15 working days, you must tell the employee the reason for the delay and the earliest date you will make records available.
A possible point of confusion is the requirement in the Hazard Communication Standard @ 29 CFR 1910.1200 to make MSDS’s readily accessible to employees during their work shift. here the regulations clearly require an MSDS, no other form of information will suffice. For most employers, since they must comply with the Hazard Communication Standard anyway, it is easiest to retain those same MSDS’s to comply with the requirements of record retention in 29 CFR 1910.1020.
If you either ship or receive a hazardous material, including a hazardous waste, then you must also comply with the regulations of the US Department of Transportation and train your HazMat Employees every three years. I provide HazMat Employee Training and RCRA Training for Hazardous Waste Personnel. Review my public/open enrollment training schedule or contact me to discuss on-site training.
Last reissued in 2008 and renewed every four years, the revised and updated 2012 version of the ERG is due to be released by the Department of Transportation any day now and may be in publication by the time you read this article. If you rely on the ERG for its primary function of emergency response, or you use it – as I do – as a part of DOT HazMat Employee training, you must soon discard the 2008 copies and replace them with the 2012.
But, what is the Emergency Response Guidebook?
It’s a joint publication of the US DOT, Transport Canada, and the Secretariat of Communications and Transportation of Mexico (SCT). It’s purpose is to provide information to 1st responders in the event of a hazardous material emergency to enable them to…
- Quickly identify the material involved, and;
- Protect themselves and the general public during the initial phases (approximately the first 30 minutes) of the incident.
To accomplish this, the ERG is primarily made up of four colored sections: yellow, blue, orange, & green. They each have a role in identifying the characteristics of the hazardous material involved and the primary emergency response procedures:
Yellow: Lists the hazardous materials/dangerous goods in numerical order of the identification number. It also indicates the DOT proper shipping name of the hazardous material and, most importantly, the emergency response guide number.
Blue: Lists the hazardous materials/dangerous goods in alphabetical order by their DOT proper shipping name. It also indicates the 4-digit identification number and, again, the emergency response guide number for the hazardous material.
Orange: The most important section of the ERG, as it contains the safety recommendations in a hazardous materials incident or emergency. It contains 62 individual guides in a two page format. Each provides safety recommendations and emergency response information and is divided into three sections:
- Potential hazards that the material may display, with the highest potential listed first.
- Suggested public safety measures.
- Emergency response actions in the event of a fire, spills or leaks, or if 1st aid is necessary.
Green: If a material’s entry in the yellow or blue section is highlighted in green, it’s an indication to proceed first to Table 1 in the green section which lists Toxic Inhalation Hazards (TIH’s) that require initial isolation and protective action distances, ie. they may emit toxic gases.
Proper use of the ERG begins in the yellow or blue section and then proceeds to the orange and/or green section as appropriate. For a 1st response to work effectively, the required hazard communication methods (shipping papers, placards, labels, and markings) must be used correctly by the responsible HazMat Employees. I use this point in my training to illustrate the importance of communicating the correct proper shipping name and identification number on shipping papers, placards, and packaging as required. The ERG contains additional options for determination of the emergency response guide number when neither the proper shipping name nor the identification number are available, these are…
- Placards displayed.
- Rail car or road trailer silhouette .
- Hazard identification codes used on intermodal containers.
- Contact information for various emergency response agencies.
The above are only recommended for use if no other method to identify the hazardous material are available.
The 2008 Emergency Response Guidebook has been a great tool for emergency responders and to demonstrate to HazMat Employees the importance of the hazard communication methods, especially the proper shipping name and the identification number. Make sure you obtain a copy of the 2012 copy as soon as it becomes available.
Last year EPA announced the launch of a new mapping feature within its Enforcement and Compliance History Online (ECHO) database. Updated monthly, it includes information on enforcement actions – undertaken by EPA at the Federal level or by authorized State environmental agencies – against businesses like yours. This new feature is part of the EPA’s ongoing effort to improve transparency and include more parties in maintaining regulatory compliance and protecting the environment.
The result of this “transparency” is that businesses such as yours must prepare to address – and be addressed by – a general public and other interested parties who now have ready access to critical information about your facility’s compliance status. All enforcement actions undertaken by State and Federal agencies are included. The data may be searched by year, media (air, water, waste, or multiple), by State, or other criteria. The mapping tool also allows users to focus on specific facilities and view:
- Facility name.
- Applicable environmental statute with potential violation.
- Link to detailed information about the facility’s compliance status on the ECHO database.
What does this mean for you? Now more than ever, enforcement actions against your company are “Public Knowledge”. Once an applicable action is taken by a State or Federal agency, there is no way to prevent it quickly becoming available to neighbors, concerned citizens, media, environmental groups, and your competitors. The best way to prevent this kind of stain on your company image is to preclude the necessity for an enforcement action in the first place.
Maintain compliance with all State and Federal regulations. Begin by ensuring any employees who generate, manage, or handle hazardous waste receive annual RCRA (aka: Hazardous Waste Personnel) Training. It is also likely that you have employees that require the DOT’s HazMat Employee training. I can provide both of those trainings at a reasonable price and at a location convenient for you. Review my open enrollment training schedule, and my prices, or contact me about on-site training.
RCRA State Authorization
Mar 31
The Resource Conservation and Recovery Act (RCRA), signed into law in 1976, tasked the US Environmental Protection Agency (EPA) to draft and enforce the regulations that form the Federal program based on the Act. RCRA authorized EPA to delegate the primary responsibility of implementing the hazardous waste program to States and Territories with approved programs. To achieve approved program status (aka: RCRA Authorization), a States’ program must be substantially equivalent to, consistent with, and no less stringent than the Federal program.
What this means is that a State with a business-friendly agenda can’t take the EPA regulations and water them down as a gift to hazardous waste generators within their borders. A more common occurrence is a State will go beyond the Federal program to be more strict and more broad in its regulation of hazardous waste. Examples of this include:
- Annual hazardous waste reports instead of biennial.
- State-specific forms required for the Notification of Regulated Waste Activity.
- State-specific listed and characteristic hazardous waste.
- Containment requirements for hazardous waste Central Accumulation Areas at un-permitted hazardous waste generators – US EPA requires containment for permitted facilities only.
- Time limits for accumulation for hazardous waste in Satellite Accumulation Areas.
So, does your State have RCRA Authorization? Unless your located in Iowa, Alaska, or Puerto Rico, the answer is yes. These two States and the Commonwealth lack authorization for a State RCRA program and defer to their US EPA Regional authority (Region 7, 10, & 1, respectively). Anywhere else, and you must look to your State environmental agency as the primary source of RCRA regulation and enforcement; currently 50 States and Territories (what up Guam!) have RCRA Authorization.
If you haven’t already, take the time to learn more about your State environmental agency and your state-specific regulations; three good sources are:
- EPA RCRA Authorization homepage
- EPA Summary of State Programs
- RCRA/Hazardous Waste Resource Locator provided by ENVCAP
My RCRA open enrollment RCRA training covers the Federal regulations, but where applicable I indicate the areas where the States frequently differ and provide State-specific information if available. If you really wish for me to drill down to the State regulations and how they apply to your operations, I suggest my on-site training for one low flat fee. With on-site training, I work with you to provide exactly the training you need at your facility to maintain compliance with Federal and State regulations. My training also meets the HazMat Employee training requirements of the Department of Transportation.
Please contact me for a free consultation to determine which regulations apply to your operations and what training is right for you.
The Rulemaking Process
Mar 5
The Code of Federal Regulations or CFR contains all of the rules and regulations of Federal Agencies, a description of the structure of the CFR can be found here. Equally important to understanding the regulations is awareness of the rulemaking process where a determination is made that a new or revised regulation is necessary and steps taken to create that regulation. A graphic illustration or “Reg Map” of the process can be found here.
Before the rulemaking process becomes public, a Federal agency must take the initiative to create a new rule or revise an existing one to meet some need. The agency will determine if a new or revised rule is needed based on a variety of factors that may include public health and safety concerns, new scientific data or technology, political pressure, and more. The agency will then prepare a Notice of Proposed Rulemaking (NPRM) and make it available for review by the Office of Management and Budget (OMB).
Executive Order 12866, signed by President Clinton in 1993, created guidelines for OMB to follow during its review. It will not allow the NPRM to be published if, among other things, it is not consistent with the issuing agencies authority and philosophy, contradicts or conflicts with existing rules, or if it determines the issuing agency has not considered alternatives to issuing the rule. The OMB will only review those rulemaking actions it determines to be “significant”.
If the NPRM passes the OMB review, it is ready to be published in the Federal Register. The Federal Register is the official daily publication for rules, proposed rules, and notices of Federal agencies and organizations, as well as executive orders and other presidential documents. The purpose of the NPRM is to make publicly known the proposed new rule or revision. The agency will include with the NPRM its reasons for the rule and supporting information. The public is then to comment on the NPRM.
Comments on the NPRM by the public may be made through a variety of methods: US Mail, hand delivery, fax, email, or web portal (www.regulations.gov). Comments must reference the Docket Number and Regulation Identifier Number (RIN) assigned to the NPRM. Choose your words carefully, all comments are made publicly available along with the NPRM.
The Comment Period will last for a period of time established by the agency in the NPRM (60 days is standard); the holding of a public hearing during this time is at the discretion of the agency unless required by statute or its policy. At the close of the Comment Period the agency will conduct research taking into consideration any new information contained in comments received. Consideration is given to the proposed rule’s economic costs and benefits, possible environmental impact, and overall burden on the regulated parties. After it has completed the research to its satisfaction the agency will draft the final rule, interim final rule, or direct final rule.
- A final rule adds, changes, deletes, or affirms regulatory text.
- An interim final rule adds, changes, or deletes regulatory text and contains a request for comments. The subsequent final rule may make changes to the text of the interim final rule.
- A direct final rule adds, changes, or deletes regulatory text at a specified future time, with a duty to withdraw the rule if the agency receives adverse comments within the period specified by the agency.
The OMB then has ninety days to again review the rule prior to its publication. OMB may either approve the rule for publication or send it back to the issuing agency for additional research.
Publication of the rule may take the form of each or all of the following:
- Submittal to both houses of Congress and the General Accounting Office for review and possible impact on the rule.
- Publication in the Federal Register.
- Publication in the Code of Federal Regulations
The Federal Register entry contains valuable information in the form of the preamble where the agency will address comments received, provide support information for the appearance of the rule as published, indicate the purpose of the rule, and include its opinion of what the rule means.
The agency may make minor changes to the rule upon publication, such as correcting typos, without informing the public or creating a comment period.
Why is it so important to be aware of this process? Every step of the above that takes place in the public realm is made available on the internet (www.regulations.gov). Given the widespread availability of the internet, the government assumes that this information will be known by all affected persons. In short, if you are in non-compliance with a regulation because you were unaware of its existence, the agency (US EPA, OSHA, US DOT) will point to its publication in the Federal Register and say, “you should have known”.
I have had the opportunity to conduct training for a variety of companies over the years. It is not uncommon that they first learn of the existence of a regulation from me. Often they are surprised to learn that they are not in compliance with a regulation that has been in effect for years; their comment: ”No one told us about that.” The regulatory agencies such as the US EPA or the US DOT won’t tell you about a new or revised regulation until they find you to be in violation and it’s too late. Attending high-quality training like mine is one way to learn about new and revised regulations that affect you and meet the training requirements of the US EPA and the US DOT.
My one day training events will meet the regulatory requirements of the US EPA for hazardous waste personnel and the US DOT for HazMat Employees. Check out my training schedule to find a date and location convenient for you or contact me (Info@DanielsTraining.com) to arrange for on-site training.
If you’ve been through some type of regulatory training, it’s likely you’ve seen one or more of these…
- “The Professor” – A dry, technical presentation; packed with information, but assuming a higher level of regulatory awareness than that of the average EHS professional. Way too much information on obscure regulations that don’t apply to your operations.
- “The Showman” - Energetic, a multi-media, caffeinated presentation that keeps you interested, “What goofy image is going to be on the next slide?” but lacking in substance. No explanation of how the regulations work or how they apply to you.
- “The Mouth Piece” - Presenting someone else’s material. The content is solid, but the presenter, lacking the experience and the knowledge, is only reading the information to you. Your follow-up questions are not answered satisfactorily.
- “The Corporation” - The training providers whose names you would recognize if I had the courage to list them here. Great marketing materials, impressive website, slick operation, but the training; what about the quality of the training? It comes down to who they hire; if that person doesn’t have the experience, knowledge, and skills, the best website in the world won’t make up for your lost time and money.
- “The Freebie” - Sometimes offered by your waste vendor or some other entity not in the business of training. ”There’s no such thing as a free lunch.”, and there’s no such thing as free high quality training.
- “The Trainer You Know (aka: Last Year’s Trainer)” - You return to the same training year after year, as if they are the only training provider out there. I recommend to anyone to vary their training providers, especially for annual training such as US EPA’s Hazardous Waste Personnel. Even if the training isn’t as good, you at least gain a different perspective on the regulations. Note to those who have attended my training, disregard #6.
- “The Bargain” - Cousin to “The Freebie”, this training is a few dollars cheaper, or doesn’t require an overnight stay, or doesn’t require air travel, so it seems like a deal. In the end your company saves a few hundred bucks per year on training, but consider: how much does one fine cost?
When deciding on what training to attend, you should choose the training that best fills your needs, determine if the training…
- Meets your regulatory requirements.
- Represents “real world” information.
- Provides you with tools and guidance information beyond the training content.
- Entertains and engages you.
- Answers your questions.
There are many good training providers out there, I think I am one of them. Please contact me for a free consultation on your training needs if you generate a hazardous waste and/or ship or receive hazardous materials.