Regulated Industry General Interest

Retention of Material Safety Data Sheets

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):

  1. The MSDS, or
  2. 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.

EPA Mapping Tool Improves Public Access to Enforcement Actions Under RCRA, CWA, CAA, & Others

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

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.

State Authorization for Hazardous Waste Regulations

A state may have its own RCRA Regulations

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 – EPA requires containment for permitted facilities only.
  • Time limits for accumulation of hazardous waste in Satellite Accumulation Areas.
  • More…

So, does your State have RCRA Authorization?  Unless your located in Iowa or Alaska, the answer is yes.  These two States lack authorization for a State RCRA program and defer to their EPA Regional authority (Region 7 & 10, respectively) for enforcement of the Federal regulations within their state.  In the remaining 48 states the primary RCRA enforcement authority is that State’s environmental compliance agency (they go by many names).

So that’s the 50 states, but what about the District of Columbia, tribal lands, and the Territories?  The status of those entities are as follows:

Authorized RCRA Program Lacks RCRA Authorization
District of Columbia Puerto Rico
Guam The Virgin Islands
American Samoa
Commonwealth of the Northern Mariana Islands
Tribal Lands (unless the State specifically receives authorization for them within its borders)

Note:  sometimes American Samoa and the Commonwealth of the Northern Mariana Islands are referred to as one entity, the Trust Territories.

FAQs:

Q:  My business is in a state with RCRA authorization, does that mean I don’t have to obey EPA regulations?

A:  No.  What it does mean is that the regulations of your state are your first source for determining compliance with RCRA.  Often a state will incorporate EPA regulations into its own unchanged or simply refer you to the Federal regulations to determine compliance.

Q:  My business is in a state with RCRA Authorization, does this mean I will never be inspected by the Feds?

A:  No.  Despite allowing a state with an authorized RCRA program to take the lead in enforcing its own regulations, the EPA maintains its right to conduct inspections in any state.  If inspected by the EPA, compliance with your state regulations will still be required.

Q:  The Federal hazardous waste regulations recently changed and I’m unsure of the status of the regulations of my state, what do I do?

A:  You must first determine if your state has an authorized hazardous waste program.  If it does, than it is likely, though not certain, that the regulations will not be immediately effective in your state.  Instead your state must decide if it will adopt the new Federal regulations, reject them, or come up with its own version that is at least as strict and as broad as the Federal rule.  If your state lacks RCRA authorization, then the rule will be effective in your state as soon as it is effective in the Federal regulations.

Q:  My state has RCRA authorization and so do the neighboring states, must I comply with the other state’s regulations in addition to my own?

A:  You do if you have business in that state.  For example, you might generate a waste that is determined to be non-hazardous by the regulations of your state, but it is possible that another state – based on its own regulations – may determine the waste to be hazardous.  If you intend to ship your non-hazardous waste out-of-state for disposal you will have to consider the regulations of that state as well as your own.

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:

  1. EPA RCRA Authorization homepage
  2. EPA Summary of State Programs
  3. RCRA/Hazardous Waste Resource Locator provided by ENVCAP
All states require annual training of Facility Personnel of an LQG

Be sure your RCRA Training addresses the regulations of your state.

My Onsite Training is the way to go it you want training focused on the regulations of your state and how they apply to your operations.  Site specific training is also available through a Webinar.

Daniels Training Services

815.821.1550/Info@DanielsTraining.com/https://www.danielstraining.com/

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

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.

The Seven Kinds of Training Providers

If you’ve been through some type of regulatory training, it’s likely you’ve seen one or more of these…

  1. “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.
  2. “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.
  3. “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.
  4. “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.
  5. “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.
  6. “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.
  7. “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.

Understanding the Structure of the Code of Federal Regulations

You may have heard of the Resource Conservation and Recovery Act (RCRA) or the Hazardous Materials Transportation Uniform Safety Act.  These Acts passed by Congress and signed by the President typically contain broad outlines of what the government wishes to accomplish.  Acts such as these empower Federal agencies like the US Environmental Protection Agency, the US Department of Labor, or the US Department of Transportation to turn the broad goals of the Act into specific regulations or rules which have the force of law.  The regulations of these three agencies and many others of general applicability to the public with current and future effect are published in the Federal Register for review and comments prior to being codified in the Code of Federal Regulations (CFR).

The CFR is organized into 50 titles according to broad subject matter categories, such as:  Labor (29), Environment (40), and Transportation (49).  These three titles, especially, should be familiar to manufacturing and transportation-related businesses in the US, as they are the source for most of the regulatory compliance issues they face.  Finding the exact regulatory citation you need can be a challenge.  It can be even harder if you don’t know the structure of the CFR and how the regulations are arranged.  This article is meant to change that.  A comforting fact is that except for titles 3, 41, & 48 the CFR has a uniform numbering system, so what you learn here should apply in most cases.  Here, in descending order, is the organizational system of the CFR.

Title – as mentioned above, this represents a broad subject area of regulations.  Title 40 of the CFR – or 40 CFR – contains all of the regulations of the US EPA.  49 CFR, the regulations of the Department of Transportation, and so on.

Subtitle – if used at all – title 40 doesn’t – separates the administrative rules of the agency itself (usually in Subtitle A) from the regulations it is responsible for (usually in Subtitle B).

Chapter – contains the rules of the issuing agency and usually bears its name (ie. the Pipeline and Hazardous Materials Safety Administration, Department of Transportation).

Subchapter – a further refinement of the chapter, if necessary.

Part – contains rules on a single program or function.

Subpart – a further refinement of the part, if necessary.

Section – is the basic unit of the CFR (ie. 40 CFR 262.34).  It typically contains one provision of program/function rules.  A section may contain up to six – yeah, that’s right, six – levels of paragraphs depending on the complexity of the regulations.  It gives me some comfort to know that the agencies arerecommended to use no more than three levels of paragraphs in one section.  The six levels of paragraphs in a section would look like this.

  • Level 1 (aka. Paragraph) Displayed in the CFR as: (a), (b), (c), etc.
  • Level 2 (aka. Subparagraph) Displayed in the CFR as: (1), (2), (3), etc.
  • Level 3 (aka. Sub-subparagraph) Displayed in the CFR as: (i), (ii), (iii), etc.
  • Level 4 Displayed in the CFR as: (A), (B), (C), etc.
  • Level 5 Displayed in the CFR as: (1), (2), (3), etc.
  • Level 6 Displayed in the CFR as: (i), (ii), (iii), etc.

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You may observe the word Reserved used throughout the CFR in place of the above headings, in these cases an agency is using Reserved as a placeholder to indicate that it may insert regulations into this location sometime in the future or to indicate that a portion of the CFR was intentionally left empty.

Titles are completely revised and reissued once each year on a staggered schedule:

  • Titles 1-16       Updated as of January 1
  • Titles 17-27     Updated as of April 1
  • Titles 28-41     Updated as of July 1
  • Titles 42-50     Updated as of October 1

If you are subject to any federal regulations I advise to obtain access to the Code of Federal Regulations for yourself.  It is a must for anyone who manages EHS compliance in manufacturing, transportation, or any commercial entity.  Access can be gained in a few different ways:

  • There are commercial services that can provide you with online access to all or portions of the CFR as you require.  Though not without cost, these services can be very valuable as they allow you to bookmark frequently used regulations and also contain hyperlinks to follow along when one regulation references another.  Though there are others out there, the one I am familiar with and recommend is CyberRegs.
  • An on-line version of the CFR is available for free from the Legal Information Institute of Cornell Law School.
  • Hardcopies can be purchased from the Government Publishing Office.
  • The GPO also provides a free on-line version of the CFR: eCFR

Daniels Training Services, Inc.

815.821.1550

Info@DanielsTraining.com

https://www.danielstraining.com/

Gaining access to the regulations of the USEPA and the USDOT is a good first step.   Assembling an understanding of how the regulations apply to your operations is a bit more complicated and can be intimidating.  Attendance at one of my training events will help you to understand which of the regulations apply to your operations, which you need to pay very close attention to, and where you may find exceptions from full regulation.  On-site training goes further and will explain state regulations as well that apply to your generation of hazardous waste and transportation of hazardous materials.

Working Relationship Between OSHA & EPA

Some companies, some industries, some locations just seem to be of greater interest to  one or more of the regulatory agencies:  the Occupational Health and Safety Administration (OSHA) of the US Department of Labor, the Environmental Protection Agency (US EPA), or the Pipeline and Hazardous Materials Safety Administration (PHMSA) of the US Department of Transportation.  It may be that one of these agencies is a common visitor to your property, but others you see less frequent or not at all.  While being inspected by one agency – let’s say OSHA – you may think you need not worry about compliance with the hazardous waste regulations enforced by the US EPA;  this is not so.  In this US EPA press release, the owner of a New Hampshire foundry faces criminal charges for the storage of hazardous waste for greater than 90 days without a permit.  There is nothing significant about the violation or the charge, what is significant is the fact that the chain of events was started when the violation was noted during OSHA inspections in April and August of 2009.  This is no accident, since 1991 the US EPA and OSHA have assisted each other in identifying and reporting potential violations of their respective regulations under a Memorandum of Understanding (MOU).

The purpose of the MOU is to establish and improve the working relationship between the US EPA & OSHA in order to improve their ability to detect potential violations and enforce their respective regulations.  The agencies agree to the fullest possible coordination between them at all levels which includes “referrals of alleged violations, and related matters concerning compliance and law enforcement…”  To do this US EPA and OSHA will exchange names and phone numbers of appropriate offices and personnel and keep such information up to date.  They will also conduct periodic training programs for each other’s personnel on the requirements of their respective regulations.  In short, US EPA will train OSHA personnel on what potential environmental violations they should look for when inspecting your company.  OSHA will do the same for US EPA personnel.

Under the MOU, an OSHA inspector must inform the US EPA if a potential environmental violation comes to their attention.  In turn, the US EPA must respond to such referrals:  “EPA shall respond to referrals from OSHA, and OSHA shall respond to referrals from EPA…” The agencies will have periodic meetings to track the progress of actions taken on these referrals.  You can expect US EPA to follow-up if OSHA informs them of a potential violation.

The MOU goes on to indicate that US EPA and OSHA may conduct joint inspections or separate.  If an alleged violation is found during a separate inspection, a referral shall be made.  Inspections may be part of an annual workplan developed by the agencies or ad hoc following an accident, injury, or reported violation.

No one wants a regulatory violation found during an inspection.  Even less do we want an unsafe or unwise situation to result in someone getting hurt or damaging the environment.  Better to know the regulations, comply with them, and keep everyone safe and the grass green.  My open enrollment training events will help you to do just that.  If you prefer, I can come to your site and train all of your employees in one day for a flat fee of $1,749.  Please contact me to discuss your training options further.

Proposed Changes to the Uniform Hazardous Waste Manifest

In 1984 US EPA created the Uniform Hazardous Waste Manifest. An improvement on its predecessor, it nonetheless allowed States to customize the forms to meet their state-specific needs. Twenty three states adapted the Federal form to include a state letterhead and additional data requirements. Thus variation remained between these twenty three state forms and the Federal form, even though the need to use multiple manifests for interstate shipments had ended.

Fast forward to September 6, 2005 and the creation of a nationwide standardized Uniform Hazardous Waste Manifest system. The Final Rule published on March 4, 2005 gave States and hazardous waste handlers eighteen months to use up their stocks of the old forms and to prepare their regulations for the new ones. After September 6, 2005 only the new form could be used for transportation of hazardous waste. Besides creating uniformity in the appearance and content of hazardous waste manifests, US EPA also made revisions to the form to simplify the tracking of “difficult” shipments of rejected waste, or containers with residue remaining. It also created a registry of companies that were approved to print the manifest to the US EPA specifications. These and other revisions enacted at that time can be reviewed further on the US EPA website.

As of August 22, 2011 US EPA will authorize changes to the current printing specification regulation if no adverse comments are received prior to July 22, 2011. These changes were announced in a Proposed Rule and a Direct Final Rule, both published in the Federal Register on June 22, 2011. This time the changes are much less sweeping than previously. US EPA will allow the approved printers of Uniform Hazardous Waste Manifests to use distinct colors or other methods to differentiate the copy distribution instructions on the form from the remainder of the print. This is intended to cut down on the number of mistakes made in distribution and allow those approved printers greater flexibility in complying with the manifest printing specifications.

These changes should not affect hazardous waste generators other than the possibility of a slight change in the appearance of the Uniform Hazardous Waste Manifest sometime after August 22, 2011. All other requirements, including some state specific requirements remain.

Annual training is required by the US EPA for any personnel that handle hazardous waste or sign the Uniform Hazardous Waste Manifest. Triennial training is required by the US Department of Transportation for any HazMat Employee who prepares hazardous waste for off-site transportation, loads it onto a transportation vehicle, or signs the Uniform Hazardous Waste Manifest.