COVID-19 Emergency Regulation is Announced – OSHA announced on November 4 the details of a requirement for employers with 100 or more employees to ensure each of their workers is fully vaccinated or tests for COVID-19 on at least a weekly basis. The OSHA rule will also require that these employers provide paid-time for employees to get vaccinated, and ensure all unvaccinated workers wear a face mask in the workplace.
Read more here (OSHA Defense Report, 11/4/2021) and here (npr.org, 11/4/2021).

Hot Work Definition – On September 24, 2021, the Chemical Safety Board (CSB) issued a final report for the fatal fire at the Evergreen Mill in Canton NC. The contractor didn’t consider the electric heat gun used to heat flammable resin as a form of hot work.

The electric heat gun used to warm the flammable resin could achieve temperatures in excess of the resin’s flash point and auto-ignition temperatures. The electric heat gun came into direct physical contact with the flammable resin when it fell into the resin bucket. Blastco did not recognize the ignition hazard presented by the use of the heat gun, did not inform Evergreen or Rimcor of the heat gun’s use, and did not take adequate action to prevent the introduction of ignition sources into a confined space containing flammable liquids. In addition, while Evergreen’s internal policies defined hot work as “any activity that could serve as a source of ignition,” Evergreen’s contractor orientation materials limited the hot work definition to only burning, cutting, brazing or welding.”

Read the full report here. We will discuss this incident at a future EHS Committee meeting. (csb.gov, 9/24/2021)

OSHA Announces Enhanced, Expanded Measures to Protect Workers from Hazards of Extreme Heat - “[OSHA] is initiating enhanced measures to protect workers better in hot environments and reduce the dangers of exposure to ambient heat. . . To emphasize its concern and take necessary action, OSHA is implementing an enforcement initiative on heat-related hazards, developing a National Emphasis Program on heat inspections, and launching a rulemaking process to develop a workplace heat standard. . . OSHA Area Directors across the nation will institute the following:

• Prioritize inspections of heat-related complaints, referrals and employer-reported illnesses and initiate an onsite investigation where possible.
• Instruct compliance safety and health officers, during their travels to job sites, to conduct an intervention (providing the agency's heat poster/wallet card, discuss the importance of easy access to cool water, cooling areas and acclimatization) or opening an inspection when they observe employees performing strenuous work in hot conditions.
• Expand the scope of other inspections to address heat-related hazards where worksite conditions or other evidence indicates these hazards may be present.

In October 2021, OSHA will take a significant step toward a federal heat standard to ensure protections in workplaces across the country by issuing an Advance Notice of Proposed Rulemaking on heat injury and illness prevention in outdoor and indoor work settings. . . The agency is also working to establish a National Emphasis Program on heat hazard cases, which will target high-risk industries and focus agency resources and staff time on heat inspections. The 2022 National Emphasis Program will build on the existing Regional Emphasis Program for Heat Illnesses in OSHA's Region VI, which covers Arkansas, Louisiana, New Mexico, Oklahoma and Texas.”
Read the full press release here. (osha.gov, 9/20/2021)

Forms of Waste-to-Energy Technologies Considered for Clean Air Act Regulation – “EPA is soliciting information and requesting comments to assist in the potential development of regulations for pyrolysis and gasification units that are used to convert solid or semi-solid feedstocks, including solid waste (e.g., municipal solid waste, commercial and industrial waste, hospital/medical/infectious waste, sewage sludge, other solid waste), biomass, plastics, tires, and organic contaminants in soils and oily sludges to useful products such as energy, fuels and chemical commodities. Pyrolysis and gasification are often described as heat induced thermal decomposition processes. Through recent requests for applicability determinations, it appears that pyrolysis and gasification processes are more widely being used to convert waste into useful products or energy.
Comments must be received on or before November 8, 2021.” (86 FR 50,296, 9/8/2021)

Clean Water Act Section 401 Update – “On October 21, 2021, a U.S. District Court vacated the Trump Administration’s rule that sought to limit the power of States and Indian Tribes under Section 401 of the Clean Water Act to impose conditions on federal permits for projects that would create discharges into the waters of a State or Tribe. The ruling effectively restores EPA’s prior rule, initially adopted in 1971, pending further revisions by the Biden Administration, which are currently being considered and are likely to be adopted in roughly two years. . .

• States will now have considerably more leeway than was allowed under the Trump Administration rule to impose conditions on federal permits for projects that involve discharges to the waters of an affected State. Given the Biden Administration’s priorities in environmental policy, that will likely remain in effect even after it issues a new rule governing Section 401 implementation.
• On June 2, 2021, the Biden Administration issued a Notice of Intent indicating that it would undertake an administrative process to revise the Trump Administration’s Section 401 rule, with a final rule likely to be issued in 2023. The District Court’s ruling means that, until that final rule is issued, the 1971 rule, which accorded broad discretion to the states, will remain in effect.

At least for the time being, difficult interpretative questions about how the one-year time limit allowed to states to act under Section 401 is construed, and especially how or whether the time limit can be extended, will remain.”
Read the full article here. (Lexology, Beveridge & Diamond PC – Eric L. Christensen and Allyn Stern, 10/27/2021)

Biden EPA Decides to Keep a Trump EPA NSR Rule … For Now - “The Biden EPA just did something unexpected — it decided to keep a Trump EPA rule, at least for the time being. The rule, known as “project emissions accounting” under the “New Source Review” (NSR) air permitting program, allows sources of air emissions to avoid permitting by using emission decreases to offset an increase that would otherwise need a permit. . . Despite EPA’s denial of the petition, EPA expressed some sympathy for the key objections raised by Sierra Club, suggesting that EPA may still decide to review the rule voluntarily. Specifically, EPA indicated further review may be needed on whether sources must prove that emissions decreases used to offset an increase were part of the same project that caused the increase, not merely an unrelated change. EPA also expressed interest in reevaluating whether additional recordkeeping and reporting provisions are necessary to ensure the decreases will actually occur.”
Read the full article here. (Lexology, Troutman Pepper - Mack McGuffey and Melissa Horne, 10/25/2021)

New Policy for Startup, Shutdown, Malfunction Plans – “On Sept. 30, 2021, the Biden Administration made the latest move in the startup, shutdown, and malfunction (SSM) saga when the EPA issued a guidance policy repealing a Trump Administration issued policy (issued Oct. 9, 2020) that allowed states to retain regulatory exemptions for excess emissions that occurred during SSM, and reverting back to the Obama Administration’s policy that required states to remove such waivers from their SIPs. The memo was issued in response to a Sept. 8, 2021 lawsuit filed by the Sierra Club, together with the Natural Resources Defense Council (NRDC) and the Environmental Integrity Project, against the EPA. . . This new policy reverses the guidance issued by Trump’s EPA, which granted exemptions for SIPs in Texas, North Carolina, and Iowa, and stated its intent to take further actions on a regional basis. (Trump’s EPA never revoked the 2015 SIP Call rule, which required 36 states to remove SSM exemptions from their air plans). In the new memo, EPA promises to proceed with a notice-and-comment rulemaking to address the Texas, North Carolina, and Iowa SIPs, and that no other air plans need be immediately changed as a result. This is in response to, for example, environmentalists’ contention that many large industrial sources in Texas use the affirmative defense provisions of the Texas SIP to justify excess air emissions and that the claimed ‘upsets’ are mostly avoidable and should not be justifiable through the affirmative defense provisions.”
Read the full article here. (jdsupra.com, Clark Hill, PLC, 11/2/2021).

EPA Rescinds Previous Administration’s Guidance on CWA Permit Requirements - On September 16, 2021, “EPA [rescinded] a guidance document entitled ‘Applying the Supreme Court’s County of Maui v. Hawaii Wildlife Fund Decision in the Clean Water Act (CWA) Section 402 National Pollutant Discharge Elimination System Permit Program’ that was issued by the Trump administration on January 14, 2021. With this action, EPA is preserving longstanding clean water protections. . . The previous Administration’s Maui guidance reduced clean water protections by creating a new factor for determining if a discharge of pollution from a point source through groundwater that reaches a water of the United States is the ‘functional equivalent’ of a direct discharge to such water. The addition of that factor skewed the ‘functional equivalent’ analysis in a way that could reduce the number of discharges requiring a National Pollutant Discharge Elimination System (NPDES) permit. The agency is rescinding this guidance upon determining that this additional factor is inconsistent with the Clean Water Act and the Supreme Court decision in County of Maui v. Hawaii Wildlife Fund.”
Read the full press release here. (epa.gov, 9/16/2021)

EPA Finalizes Rule Phasing Down Hydrofluorocarbons - “The U.S. Environmental Protection Agency (EPA) published a final rule on October 5, 2021 establishing an allowance allocation and trading program for hydrofluorocarbons (HFCs). The rule implements certain key requirements under the American Innovation and Manufacturing Act of 2020 (AIM Act) to begin phasing down the domestic manufacture and import of HFCs over a 15-year period starting in 2022. HFCs are potent greenhouse gases that were originally developed to replace ozone- depleting substances. The chemicals are commonly used for refrigeration, air-conditioning, foam blowing, fire-suppression, and as solvents and propellants, among other applications.”
Read the full article here. (Lexology, Beveridge & Diamond PC - K. Russell LaMotte, et al., 10/7/2021)

Send your suggestions and comments to joel@pinechemicals.org.