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More Relief for Transporting Sanitizing and Disinfecting Materials

April 27, 2020
The Department of Transportation’s Pipeline and Hazardous Materials Safety Administration (PHMSA) is providing relief for hazardous materials transported for the purpose of protecting the health and safety of employees that mirrors the relief provided for hazardous materials transported under materials of trade exceptions in 49 CFR 173.6, which exempts certain hazardous materials (e.g., Class 3 flammable liquids or Class 8 corrosive liquids) and quantities in motor vehicle shipments from the requirements of the HMR.
 
Hand sanitizers, for example, can be classified as Class 3 flammable liquids and disinfectants can be classed as Class 8 corrosive liquids. Under the hazardous materials regulations, a material of trade means a hazardous material that is carried on a motor vehicle for any of the following three purposes: 1) for protecting the health and safety of the motor vehicle operator or passengers; 2) for supporting the operation or maintenance of a motor vehicle; or 3) by a private motor carrier in direct support of a principal business that is other than transportation by motor vehicle.
 
PHMSA does not consider the incidental or de minimis use of sanitizing and disinfecting materials by non-employees with whom employees interact in the course of their duties to be in violation of the regulations. However, sanitizing and disinfecting products transported by a logistics company's own transportation network to support the health and safety of employees at the company's facilities do not meet any of these three definitions, and this discretion is intended to address this specific need.
 
PHMSA has given notice that it will not take enforcement action against any carrier transporting sanitizing and disinfecting materials carried on a motor vehicle for the purposes of protecting the health and safety of employees of the carrier provided that the following criteria are met:
  • The sanitizing and disinfecting materials, such as hand sanitizers and spray disinfectants, are intended to allow employees to adhere to Centers for Disease Control and Prevention guidelines for protecting against COVID-19.
  • The sanitizing and disinfecting materials are being provided to protect the health and safety of employees who directly support the operations of the carrier, such as by sorting packages, loading and unloading packages, and driving delivery vehicles.
  • The sanitizing and disinfecting materials are transported by motor vehicle.
  • The shipment complies with the hazard class, quantity, packaging, hazard communication, and aggregate gross weight requirements specified in 49 CFR 173.6 (Materials of Trade provisions).
  • Transport of these materials for purposes other than use by employees of the carrier (e.g. retail sale) is not authorized.
 
This Notice of Enforcement Discretion will remain in effect while the Department of Health and Human Services (HHS) January 31, 2020, determination that a public health emergency pursuant to Section 319 of the Public Health Service Act related to COVID-191 exists, or 90 days from the date of issuance of this Notice, whichever is sooner.
 
Environmental Resource Center Update
 
Due to the COVID-19 pandemic, we have combined our Safety and Environmental Tips of the week.  This issue includes some of the latest recommendations for you to keep safe at work and at home in this evolving event.
 
The health and wellbeing of our employees, customers and our communities is what matters most to all of us. To continue serve you, our seminars have been converted to live online webcasts. You can find a list of upcoming live webcasts at this link.
 
If you have enrolled in a seminar in April or May, in many cases the seminar will be held on approximately the same dates and at the same times via online webcast. We will contact you by phone or email regarding the details on how to attend the class. On-site training and consulting services are proceeding as usual. If you wish to convert these to remote services, please call your Environmental Resource Center representative or customer service at 800-537-2372.
 
Because many of our live and on-site training sessions have been postponed or canceled, we have staff available to assist you in coping with COVID-19 as well as your routine EHS requirements. If you have EHS staff that have been quarantined, we can provide remote assistance to help you meet your ongoing environmental and safety compliance requirements.  For details, call 800-537-2372.
 
COVID-19 Found in Pet Cats
 
The U.S. Centers for Disease Control and Prevention (CDC) and the United States Department of Agriculture’s (USDA) National Veterinary Services Laboratories (NVSL) announced the first confirmed cases of SARS-CoV-2 (the virus that causes COVID-19) infection in two pet cats. These are the first pets in the United States to test positive for SARS-CoV-2.
 
The cats live in two separate areas of New York state. Both had mild respiratory illness and are expected to make a full recovery. SARS-CoV-2 infections have been reported in very few animals worldwide, mostly in those that had close contact with a person with COVID-19.
 
At this time, routine testing of animals is not recommended. Should other animals be confirmed positive for SARS-CoV-2 in the United States, USDA will post the findings. State animal health and public health officials will take the lead in making determinations about whether animals should be tested for SARS-CoV-2.
 
In the NY cases, a veterinarian tested the first cat after it showed mild respiratory signs. No individuals in the household were confirmed to be ill with COVID-19. The virus may have been transmitted to this cat by mildly ill or asymptomatic household members or through contact with an infected person outside its home.
 
Samples from the second cat were taken after it showed signs of respiratory illness. The owner of the cat tested positive for COVID-19 prior to the cat showing signs. Another cat in the household has shown no signs of illness.
 
Both cats tested presumptive positive for SARS-CoV-2 at a private veterinary laboratory, which then reported the results to state and federal officials. The confirmatory testing was conducted at NVSL and included collection of additional samples. NVSL serves as an international reference laboratory and provides expertise and guidance on diagnostic techniques, as well as confirmatory testing for foreign and emerging animal diseases. Such testing is required for certain animal diseases in the U.S. in order to comply with national and international reporting procedures. The World Organization for Animal Health (OIE) considers SARS-CoV-2 an emerging disease, and therefore USDA must report confirmed U.S. animal infections to the OIE.
 
Public health officials are still learning about SARS-CoV-2, but there is no evidence that pets play a role in spreading the virus in the United States. Therefore, there is no justification in taking measures against companion animals that may compromise their welfare. Further studies are needed to understand if and how different animals, including pets, could be affected.
Until we know more, CDC recommends the following:
  • Do not let pets interact with people or other animals outside the household.
  • Keep cats indoors when possible to prevent them from interacting with other animals or people.
  • Walk dogs on a leash, maintaining at least 6 feet from other people and animals.
  • Avoid dog parks or public places where a large number of people and dogs gather.
 
If you are sick with COVID-19 (either suspected or confirmed by a test), restrict contact with your pets and other animals, just like you would around other people.
  • When possible, have another member of your household care for your pets while you are sick.
  • Avoid contact with your pet, including petting, snuggling, being kissed or licked, and sharing food or bedding.
  • If you must care for your pet or be around animals while you are sick, wear a cloth face covering and wash your hands before and after you interact with them.
 
For more information on animals and COVID-19, see: https://www.cdc.gov/coronavirus/2019-ncov/daily-life-coping/animals.html.
 
 
Safely Get Your EHS Training at Home or in Your Office
 
To help you get the training you need, Environmental Resource Center has added a number of dates to our already popular live webcast training.  Stay in compliance and learn the latest regulations from the comfort of your office or home.  Webcast attendees receive the same benefits as our seminar attendees including expert instruction, comprehensive course materials, one year of access to our AnswerlineTM service, course certificate, and a personalized user portal on Environmental Resource Center’s website.
 
Upcoming hazardous waste and DOT hazardous materials webcasts:
 
DOT Hazardous Materials Update – April 29, May 27
 
Relaxed CAA Reporting Requirements due to COVID-19
 
EPA has amended the emissions reporting regulations applicable to sources that monitor and report emissions under the Acid Rain Program, the Cross-State Air Pollution Rule (CSAPR), and/or the NOX SIP Call. The amendments provide that if an affected unit fails to complete a required quality-assurance, certification or recertification, fuel analysis, or emission rate test by the applicable deadline under the regulations because of travel, plant access, or other safety restrictions implemented to address the current COVID-19 national emergency and if the unit's actual monitored data would be considered valid if not for the delayed test, the unit may temporarily continue to report actual monitored data instead of substitute data. The amendments promulgated in this rule will expire in 180 days. EPA requested comment on the rule.
 
This rule went into effect on 22 April 2020. EPA will consider comments on this rule received on or before 22 May 2020.
 
DOT Offers Enforcement Discretion for the Manufacturing of Packaging Designs Beyond Periodic Retesting Dates
 
Due to the COVID-19 public health emergency, the Department of Transportation’s Pipeline and Hazardous Materials Safety Administration (PHMSA) has issued a notice of enforcement discretion for the continued manufacturing of United Nations performance oriented packaging used in the transportation of hazardous materials which have exceeded their periodic retesting dates.  PHMSA is providing temporary relief from enforcement action if packaging manufacturers are unable to conduct periodic design qualification retesting within 90-days of a retest date due to COVID-19 operational disruptions.
 
Waters of the United States Redefined
 
EPA and the Army published a final rule defining the scope of waters federally regulated under the Clean Water Act. The Navigable Waters Protection Rule is the second step in a comprehensive, two-step process intended to review and revise the definition of "waters of the United States" consistent with the Executive Order signed on 28 February 2017, "Restoring the Rule of Law, Federalism, and Economic Growth by Reviewing the `Waters of the United States' Rule."
 
Once effective, it replaces the rule published on 22 October 2019. This final rule implements the overall objective of the Clean Water Act to restore and maintain the integrity of the nation's waters by maintaining federal authority over those waters that the Agencies say that Congress determined should be regulated by the Federal government under its Commerce Clause powers, while adhering to Congress' policy directive to preserve States' primary authority over land and water resources. According to EPA, this final definition increases the predictability and consistency of Clean Water Act programs by clarifying the scope of "waters of the United States" federally regulated under the Act. This rule is effective on 22 June 2020. Former EPA and Army Corps of Engineers disagreed. This rule will go into effect on 22 June 2020.
 
OSHA Alert: Keep Construction Workers Safe During the Coronavirus Pandemic
 
OSHA has issued an alert that lists safety tips employers can follow to help protect construction workers from exposure to the coronavirus.
 
Measures that can help protect employees working in construction include:
  • Encourage workers to stay home if they are sick;
  • Train workers how to properly put on, use/wear, and take off protective clothing and equipment;
  • Allow workers to wear masks over their nose and mouth to prevent them from spreading the virus;
  • Continue to use other normal control measures, including personal protective equipment, necessary to protect workers from other job hazards associated with construction activities;
  • Advise workers to avoid physical contact with others and directing employees/contractors/visitors to increase personal space to at least six feet, where possible. Where work trailers are used, all workers should maintain social distancing while inside the trailers;  
  • Promote personal hygiene. If workers do not have immediate access to soap and water for handwashing, provide alcohol-based hand rubs containing at least 60 percent alcohol;
  • Use Environmental Protection Agency-approved cleaning chemicals from List N or that have label claims against the coronavirus; and
  • Encourage workers to report any safety and health concerns.
 
The new alert is available for download in English and Spanish.
 
EHS Hour
 
Even though you might not be able to get to the office or attend meetings, you can still keep up with the latest EHS requirements and learn something new. Environmental Resource Center is introducing the EHS Hour as live, online sessions to help keep you informed and productive.
 
With your subscription, you can attend all of the sessions for just $250 per month, or you can attend any single session for $49 per person. Each session will be held from 11:00 am to noon Eastern Time on Tuesdays and Thursdays.
 
Upcoming sessions include:
 
 
Hilco Redevelopment, LLC Referred to Attorney General for Enforcement
 
Illinois Environmental Protection Agency Director John J. Kim has referred an enforcement action to the Illinois Attorney General's office against Hilco Redevelopment LLC, conducting work at the Exchange 55 Business Park, located at 3501 South Pulaski Avenue, Chicago (Cook County). The referral cites violations of the Illinois Environmental Protection Act and Illinois Pollution Control Board Regulations and terms and conditions of Hilco's National Pollutant Discharge Elimination System (NPDES) general stormwater permit for construction site activities.
 
On April 11, 2020, Hilco and its demolition contractor used explosive charges to implode a large smokestack at the former Commonwealth Edison Crawford Electric Generating Station. Photographs and videos taken during and following the implosion show a large cloud of dust and airborne material created by the implosion. Following the implosion, complaints were received from neighboring properties regarding the cloud of dust that traveled through the neighborhood.
 
As part of the demolition work at the site, Hilco was required to obtain an NPDES permit, which it did in 2019. Pursuant to the NPDES permit, Hilco was obligated to develop and implement a stormwater pollution prevention plan, which details dust control measures for the site. While some dust suppression controls were utilized, a substantial plume of dust exited the site from the implosion. Hilco submitted an Incidence of Noncompliance Report to the Illinois EPA on April 15, 2020 as required under the NPDES Permit. On April 16, 2020 Illinois EPA sent a Violation Notice to Hilco for air and water pollution-related violations stemming from the incident.
 
In the referral, the Agency cited violations of the Illinois Environmental Protection Act, Illinois Pollution Control Board Regulations and the NPDES permit and asked the Attorney General to represent the Agency in the resolution of the matter. IEPA requested that Hilco be required to work with the Agency to prevent future dust control issues.
 
Seal Shield, LLC Ordered to Stop Selling Unregistered Pesticides and a Misbranded Pesticide Device
 
EPA issued a Stop Sale, Use or Removal Order (SSURO) to Seal Shield, LLC (Seal Shield) in Orlando, Florida, requiring the company to immediately halt the sale/distribution of unregistered pesticides and a misbranded pesticide device.
 
“EPA is committed to ensuring that citizens have access to safe and effective disinfectant products,” said EPA Region 4 Administrator Mary S. Walker. “By taking this action, EPA emphasizes how critical it is for companies to follow federal pesticide laws to protect human health.”
 
The SSURO is being issued to Seal Shield because it is selling products to hospitals and other healthcare providers using public health claims for protection against viruses and reduction of microbial growth leading to hospital acquired infections. In order for Seal Shield to make these claims, the products would need to be registered under Federal Insecticide, Fungicide and Rodenticide Act (FIFRA).  These products include, but are not limited to, computer external equipment, mobile devices and TV accessories. The SSURO further requires Seal Shield to stop the sale and distribution of the pesticide device ElectroClave UV Disinfection/Device Manager, because Seal Shield has made false or misleading claims that the device kills pathogens and is effective against the novel coronavirus, SARS-CoV-2, the cause of COVID-19.
 
Under FIFRA, products that claim to kill or repel bacteria or viruses on surfaces are considered pesticides and must be registered by EPA prior to distribution or sale. Public health claims can only be made for products that have been properly tested and are registered with EPA. The agency will not register a pesticide until it has been determined that it will not pose an unreasonable risk when used according to the label directions. Products not registered by EPA may be harmful to human health, cause adverse health effects, and may not be effective against the spread of viruses or other pathogens. While pesticide devices are not required to be registered, any efficacy claims made about devices must be supported by reliable scientific studies.
 
TAPI Puerto Rico, Inc. to Pay Penalty for Environmental Violations
 
EPA announced that TAPI Puerto Rico, Inc. (TAPI) has agreed to pay a penalty of $539,784 for alleged Clean Air Act and other environmental violations at its pharmaceutical manufacturing plant in Guayama, Puerto Rico. On April 13, 2020, the Department of Justice filed in federal district court in Puerto Rico a complaint against and a Stipulation and Settlement Agreement with TAPI to settle alleged violations of the Clean Air Act, the Resource Conservation and Recovery Act (RCRA), the Clean Water Act, and the Emergency Planning and Community Right-to-Know Act.
 
“Hazardous air pollutants are those known to cause cancer and other serious health impacts. Therefore, it is vitally important that facilities with these chemicals adhere to their permits and the law,” said EPA Regional Administrator Pete Lopez. “EPA takes these violations seriously as we continue our work with state and local governments to reduce air emissions of 187 toxic air pollutants to the environment.”
 
The EPA identified several areas of the facility's operations that were in violation of environmental regulations. A few of the numerous alleged violations include the following.
  • Since TAPI had the potential to emit over 10 tons/year of acetonitrile, a hazardous air pollutant, TAPI was subject to the Clean Air Act’s Pharmaceutical Maximum Achievable Control Technology Standards (MACT) and it should have amended its Title V permit application to include the Pharmaceutical MACT requirements.
  • TAPI failed to comply with the hazardous waste regulatory requirements that would have allowed it to store hazardous waste for under 90 days without a permit, and therefore did not qualify for the permit exemption; TAPI stored and/or treated hazardous waste in a surface  impoundment without a permit; TAPI failed to maintain and operate the Facility in a manner that would minimize the possibility of fire, explosion or any unplanned sudden or non-sudden release of hazardous waste that could threaten human health or the environment as required by its RCRA permit.
  • The company also failed to timely submit to EPA annual toxic chemical release inventory reporting  for its use of naphthalene in its operations  as required by the Emergency Planning and Community Right-to-Know Act. The company also failed to submit timely reports to EPA’s annual Toxics Release Inventory, as required by the Emergency Planning and Community Right-to-Know Act, for its use of naphthalene in its operations.
  • TAPI violated its Puerto Rico wastewater pretreatment permit by failing to operate and maintain its pretreatment systems to ensure permit compliance. This included, among other violations, wastewater leaking from a corroded tank, large cracks in three tanks and an overflow of an equalization tank.
 
TAPI’s parent company, Teva Pharmaceuticals Industries Ltd, is a multinational pharmaceutical company and one of the largest generic drug manufacturers in the world. EPA will continue to monitor developments associated with the parties. However, the violations are no longer occurring as the facility ceased operating.
 
EPA Coronavirus Resources for State, Local, and Tribal Governments
 
EPA has updated its coronavirus website to include new resources for state, local, and tribal agencies and intergovernmental associations. These resources will help EPA and its partners continue to provide the environmental protection the nation depends on without interruption during the coronavirus public health emergency.
 
“EPA is doing all we can to support our state, local, and tribal partners as we work together to address this public health emergency in our communities,” said EPA Administrator Andrew Wheeler. “The resources we are providing on this new webpage will help us coordinate our efforts, provide flexibilities when necessary, and effectively navigate through any challenges that may arise.”
 
EPA’s Coronavirus (COVID-19) Resources for State, Local, and Tribal Agencies and Associations contains important information on grants, enforcement and compliance programs, water infrastructure, and a host of other issues important to effective environmental program delivery. The webpage will be updated regularly with new information.
 
During the response to the coronavirus crisis, EPA, states, tribes, and communities have encountered and resolved together many challenges requiring creativity and flexibility. EPA headquarters and the regional offices have participated in many virtual meetings with state and tribal environmental leaders to work through time-sensitive issues and the agency continues to maintain open lines of communication with all of our co-regulators.
 
EPA is also continuing to update resources on its website and add to the list of surface disinfectant products that are effective against SARS-CoV-2. To contact EPA about any Coronavirus (COVID-19) issue, you may do so here.
 
Large Retailers Fined for Exceeding Levels of Smog-Forming Pollution in Household Products
 
Over the past two years, the California Air Resources Board assessed fines from well-known retailers totaling $325,270 for violations of air quality regulations limiting smog-forming chemicals found in a wide range of household products including general purpose cleaners, multipurpose lubricants, and air fresheners.
 
The chemicals, known as volatile organic compounds (VOCs), are an important component of the chemical mixture that turns into ozone when exposed to sunlight. CARB establishes VOC limits for many different types of consumer products such as personal care products and cleaning supplies. Under the regulation, retailers, distributors, importers and manufacturers of consumer products are all responsible for ensuring the products they sell in California comply with the limits.
 
“Many common household products contain compounds that contribute to ground level ozone formation,” explains CARB Enforcement Division Chief Todd Sax. “Breathing in ozone may cause people to experience chest pain, coughing and throat irritation. It is important that retailers understand their role to ensure household products they sell meet clean air standards before those products reach California households.”
In total, the violations of the regulation were responsible for 3.72 tons of the smog-forming VOCs.
 
Products labeled “not for sale in California"
CARB found retailers in violation because they did not adhere to the warning from manufacturers and sold products clearly labeled “not for sale in California”.  Products sold by the following retailers exceeded California’s VOC limits and were not meant to be sold in California:
 
Private label products
Some retailers sell products under their own private label. Though retailers do not directly manufacture these products, individual retailers assume responsibility when they put their brand name on a product containing VOCs. CARB found the following companies in violation for failing to ensure their private label products met California standards:
 
Products imported for sale
When retailers import products, they assume the liability normally associated with being a manufacturer. CARB fined the following companies for importing and selling noncompliant products:
 
As the middleman between manufacturers, distributors and consumers, retailers serve a critical role in supplying the people of California with compliant products. Retailers must ensure that they offer for sale only compliant products to protect the health of California consumers and to avoid large penalties through enforcement action.
 
Contractor Cited Following Worker Fatality Due to Chemical Inhalation
 
OSHA has cited Creative Multicare Inc. – a carpet restoration, plumbing and resurfacing contractor based in Stockbridge, Georgia – for exposing employees to safety and health hazards after a fatal incident at a worksite in Perry, Georgia. The company faces $183,127 in penalties.
 
OSHA initiated an investigation after a Creative Multicare Inc. employee suffered fatal injuries after inhaling lacquer thinner, which was used to resurface a bathtub. OSHA cited the company for failing to evaluate the chemical wash cleaning task and determine workers’ level of exposure to the lacquer thinner. The agency also cited the company for improperly labeling mixtures used to clean and resurface bathtubs and countertops and exposing employees to a concentration of toluene several times above permissible exposure limits. Creative Multicare also received citations for allowing flash fire and explosion hazards and for failing to provide suitable facilities for quick drenching and flushing of the eyes and body and flame-retardant clothing. Finally, OSHA cited the company for not performing a personal protective equipment assessment and using respirators properly.
 
“Employers must be vigilant in identifying and eliminating recognized safety and health hazards when allowing employees to work with hazardous chemicals,” said OSHA Acting Atlanta-East Area Office Director William Cochran. “Employers that implement robust safety programs have a greater chance of ensuring their employees remain safe and healthy each day.”
 
See OSHA’s website for resources and information on recognizing and controlling exposures to chemicals.
 
Florida Construction Contractor Cited for Exposing Employees to Cave-In and Other Hazards
 
OSHA has cited Cathcart Construction Company-Florida LLC for exposing employees to excavation hazards at worksites in Orlando and Winter Garden, Florida. The general contractor faces $303,611 in penalties.
 
OSHA cited the Oviedo, Florida-based contractor for exposing employees to cave-in and engulfment hazards by allowing them to work in unprotected excavations that also lacked safe means for employees to enter and exit the excavation. Other violations include using a trench shield with missing components, not ensuring employees used personal protective equipment, failing to perform testing to identify hazardous atmospheres and post traffic control signs, and not training flaggers.
 
“A trench collapse can happen in seconds and is preventable. Employers are legally obligated to ensure adequate protections are in place to prevent serious or fatal injuries,” said Principal Deputy Assistant Secretary for Occupational Safety and Health Loren Sweatt.
 
OSHA recently updated the National Emphasis Program on preventing injuries related to trenching and excavation collapses. OSHA’s trenching and excavation webpage provides additional information on trenching hazards and solutions, including a trenching operations QuickCard and a “Protect Workers in Trenches” poster.
 
Dollar Tree Store Cited for Exposing Employees to Exit, Storage, and Fire Hazards
 
OSHA has cited Dollar Tree Stores Inc. for exit, storage and fire hazards at a Bloomington, Illinois, store. The national discount retailer faces $233,255 in penalties for three repeat violations.
 
OSHA inspectors cited the company for exposing employees to fire hazards from obstructed exit routes and blocked fire extinguishers, and to struck-by hazards from unstable stacks of stored merchandise.
 
“This employer is responsible for ensuring that every store implements required safety precautions to protect employees on the job,” said OSHA Peoria Area Director Barry Salerno. “OSHA will continue to use enforcement tools to ensure employers comply with their obligation to keep workers safe.”
 
OSHA also cited Dollar Tree Stores Inc. for exit, storage, compressed gas and walking working surface hazards at a LaVista, Nebraska, store. The national discount retailer faces $539,934 in penalties.
 
OSHA alleges the company exposed employees to fire hazards from obstructed exit routes, struck-by hazards caused by unstable stacks of stored merchandise, and walking working surfaces hazards resulting from poor housekeeping. Other alleged violations include improper storage of compressed gas cylinders, lack of personal protective equipment and unsafe ladder use. OSHA cited the retailer for three willful and three serious violations, as well as one repeat violation.
 
Additional information about OSHA requirements for keeping exits unobstructed is available in the agency’s Emergency Exit Routes fact sheet. OSHA’s Recommended Practices for Safety and Health Programs includes information on how to identify and assess hazards in the workplace.
 
Information about OSHA requirements for keeping exits unobstructed is available in the agency’s Emergency Exit Routes fact sheet. OSHA’s Recommended Practices for Safety and Health Programs includes information on how to identify and assess hazards in the workplace.
 
The company has 15 business days from receipt of the Illinois citations and Nebraska violations to comply, request an informal conference with OSHA’s area director, or contest the findings before the independent Occupational Safety and Health Review Commission.
 
Wisconsin Manufacturer Cited for Exposing Employees to Multiple Hazards
 
OSHA has cited MODS International Inc. – a fabrication company that converts shipping containers into commercial and residential structures – for exposing employees to multiple hazards at their facility in Appleton, Wisconsin. The company faces penalties of $216,299 for seven repeat and seven serious safety and health violations.
 
OSHA inspectors determined that the company failed to conduct workplace hazard assessments; develop a hazardous communication program; train employees on hazardous materials, fall protection hazards, and how to properly operate forklifts; develop and implement respiratory protection and hearing conservation programs; and install adequate machine guarding. Additionally, the company stored oxygen and acetylene storage tanks improperly, failed to inspect fire extinguishers, and exposed employees to electrical hazards – violations for which the company has been previously cited.
 
“Employers are legally required to protect workers from known safety and health hazards in their facilities,” said OSHA Appleton Area Director Robert Bonack. “Compliance with OSHA regulations is not voluntary. This employer must implement required safety and health procedures, and train workers to identify and correct hazards that can cause injury or illness.”
 
 
The company has contested the citations. The notice of contest has been forwarded to the Occupational Safety and Health Review Commission.
 
Flexibility Available for Facilities Coping with COVID in Arkansas
 
The Arkansas Department of Energy and Environment has created an email address, COVID19EE@adeq.state.ar.us, for regulated entities that face unavoidable noncompliance situations to request regulatory flexibility and assistance in providing alternative approaches to maintaining compliance, where possible.
 
The flexibility may include extending reporting deadlines, consideration of waiving late fees, and exercising enforcement discretion. If an entity has already submitted a request prior to March 30, 2020, there is no need to resubmit as that request is being considered. It is important to note that despite the current state of affairs, all regulated entities remain obligated to ensure compliance, to the best of their ability, with all orders, regulations and permit requirements.
 
The email requests should at a minimum include the following:
  • Name of the entity
  • Central point of contact for the entity, including an email address and phone number
  • Permit number or AFIN number
  • Agency by which entity is regulated
  • Requested start and stop date for relief
  • Specific regulatory or permit requirement that cannot be complied with
  • Statement describing the circumstances preventing compliance
  • Measures that will be taken to protect public health and the environment during the need for enforcement discretion
  • Any additional details or documentation necessary to submit the request
 
Where alternative compliance options are authorized by E&E, regulated entities must maintain records adequate to document activities related to the noncompliance and details of the regulated entity’s best efforts to comply.
 
Questions regarding this guidance should be submitted to COVID19EE@adeq.state.ar.us.
 
A copy of the Department’s Enforcement Guidance can be found here: Energy and Environment Enforcement Guidance.pdf.
 
EPA Ordered to Act on Pesticide in Pet Collars
 
A federal appeals court in California ordered the EPA to act on a request by the Natural Resources Defense Council (NRDC) to ban the use of the pesticide TCVP in pet collars. The EPA acknowledges exposure to the pesticide can harm kids’ developing brains.
 
Mae Wu, senior director of the Health and Food Program at NRDC, said “this is an important victory – and one for which we’ve been fighting for more than a decade. In 2016, EPA scientists finally acknowledged the danger this toxic chemical poses to children, but the agency then failed to remove the dangerous pet products from the market.  It’s especially gratifying, on Earth Day, to have the court hold EPA accountable to its ‘core mission’ to ‘protect human health and the environment.’”
 
The U.S. Court of Appeals for the Ninth Circuit found that “EPA’s years-long delay on this critical matter of public health has been nothing short of egregious.”
The court wrote: “Repeatedly, the EPA has kicked the can down the road and betrayed its prior assurances of timely action, even as it has acknowledged that the pesticide poses widespread, serious risks to the neurodevelopmental health of children.”
 
TCVP (tetrachlorvinphos) is an organophosphate pesticide used in pet products, especially flea collars. The EPA has determined that the use in flea collars put children at risk because of harm to the brain and nervous system.
 
NRDC first petitioned EPA to ban the last remaining residential use of this dangerous family of chemicals back in 2009.  The agency ignored the petition and stalled for 5 years.  NRDC sued in 2014 to force EPA to respond to the petition and then again in 2015 to challenge EPA’s refusal to follow the science and ban the use of TCVP in pet products.  As a result of that lawsuit, EPA reevaluated the safety of TCVP and determined that the pet products put children at risk.  However, the EPA then did nothing to ban the use in pet products, so NRDC took EPA back to court in 2019 to demand the agency act on our request to ban this last remaining residential use of TCVP and the agency’s own scientific findings.
 
The U.S. Court of Appeals for the Ninth Circuit granted NRDC’s request and ordered the agency to take final action on this pesticide by either denying the organization’s petition or beginning proceedings to cancel the pesticide within one year.
 
EPA Draft Scope Evaluations for TSCA High-Priority Chemicals
 
As required by the Toxic Substances Control Act (TSCA), which was amended by the Frank R. Lautenberg Chemical Safety for the 21st Century Act in June 2016, EPA announced on April 23 the availability of the draft scope documents for the risk evaluations to be conducted for 7 of 20 High-Priority Substances designated in December 2019. The draft scope document for each chemical substance includes the conditions of use, hazards, exposures, and the potentially exposed or susceptible subpopulations the EPA plans to consider in conducting the risk evaluation for that chemical substance. EPA also opened a 45-calendar day comment period on these draft scope documents to allow for the public to provide additional data or information that could be useful to the Agency in finalizing the scope of the risk evaluations.
 
The draft scope evaluations are available for:
  • Formaldehyde
  • Butyl benzyl phthalate (BBP) (1,2-Benzenedicarboxylic acid, 1-butyl 2-(phenylmethyl) ester)
  • Dibutyl phthalate (DBP) (1,2-Benzenedicarboxylic acid, 1,2-dibutyl ester)
  • Dicyclohexyl phthalate (1,2-Benzenedicarboxylic acid, 1,2-dicyclohexyl ester)
  • Di-ethylhexyl phthalate (DEHP) (1,2-Benzenedicarboxylic acid, 1,2-bis(2-ethylhexyl) ester)
  • Di-isobutyl phthalate (DIBP) (1,2-Benzenedicarboxylic acid, 1,2-bis(2-methylpropyl) ester)
  • Phthalic anhydride (1,3-Isobenzofurandione)
 
New Study Finds EPA Mercury Analysis Is "Seriously Flawed"
 
An article published in Science magazine finds deep flaws in the EPA’s benefit-cost analysis in support of a proposed rule related to the regulation of hazardous air pollution from coal-burning power plants. The analysis forms part of the foundation for a regulatory proposal to roll back the legal underpinnings of its Mercury and Air Toxics Standards (MATS), which power plants have been complying with since 2016, leaving the standards vulnerable to legal challenges.
 
Researchers from Harvard, Yale, Claremont McKenna College, UC Berkeley, Georgetown, and Resources for the Future (RFF), claim that EPA “ignores scientific evidence, economic best practice, and its own guidance” in the new analysis. The authors assert that EPA “can and should do better.”
 
“The EPA’s new analysis of the cost and benefits of the MATS rule is clearly insufficient. It fails to account for advances in our understanding of the negative health impacts of mercury and changes in electricity generation since 2011, which have led to much lower compliance costs than were originally projected,” says RFF Senior Fellow Karen Palmer, a coauthor on the paper. “And, it dismisses an entire category of benefits.”
 
The authors highlight the following as flaws in EPA’s analysis:
  • It disregards economically significant but indirect public health benefits, or “co-benefits,” in a manner inconsistent with economic fundamentals. The expected benefits of reducing particulate matter pollution of $33-90 billion per year easily exceed the expected costs of $9.6 billion under EPA’s original 2011 analysis of the MATS rule.
  • It fails to account for recent science that identifies important sources of direct health benefits from reducing mercury emissions, such as fewer heart attacks.
  • It ignores transformative changes in the structure and operations of the electricity sector over the last decade. Shifts from coal to natural gas and renewable sources, including wind and solar power, for electricity generation have decreased the number of power plants that must install pollution control equipment. The investment in pollution control has been about half of what was projected in 2011.
 
“If finalized, the new rule will undermine continued implementation of MATS and set a concerning precedent for use of similarly inappropriate analyses in the evaluation of other regulations,” the authors state.
 
The article was written by Joseph Aldy (Harvard University and RFF), Matthew Kotchen (Yale University), Mary Evans (Claremont McKenna College), Meredith Fowlie (University of California, Berkeley), Arik Levinson (Georgetown University), and Karen Palmer (RFF).
 
Attorneys General Ask 3M to Take Action to Prevent Price Gouging of Personal Protective Equipment
 
Maryland Attorney General Brian E. Frosh joined 18 other attorneys general in urging 3M to do more to combat inflated prices of N95 respirators and other desperately needed personal protective equipment (PPE). There has been a critical shortage of PPE across the country and distributors have been taking advantage of the increased demand and charging higher than normal prices for N95 face masks and other PPE. The coalition highlights that, while 3M has committed to maintaining prices for N95 respirators, distributors of 3M products and others in the marketplace have been charging unconscionable prices.
 
In the letter, the coalition says, “It is crucial that hospitals, healthcare workers, and first responders have access to these masks and other PPE and that they are able to obtain them at reasonable prices so that they can care for patients with COVID-19 as well as others needing medical attention.”
 
The attorneys general ask 3M to take the following actions, in addition to the steps they have already taken, to work towards eliminating price gouging of PPE:
  • Continue to publish policies prohibiting price gouging by its distributors and cease doing business with those distributors who violate them;
  • Create a database of 3M’s inventory of N95 respirators for government officials and healthcare providers; and,
  • Make transparent how inventory is being distributed and how orders are being filed.
 
In addition to Maryland, the letter was signed by the attorneys general of California, Connecticut, the District of Columbia, Delaware, Hawaii, Illinois, Iowa, Maine, Minnesota, Nevada, New Mexico, New York, North Carolina, Oregon, Pennsylvania, and Rhode Island, and Virginia.
 
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