Evaluation of Existing Regulations - 5/15/17
ILMA submitted comments to EPA last week on the Agency’s Federal Register Notice, “Evaluation of Existing Regulations.” EPA has asked for stakeholder comments to assist the Agency respond to President Trump’s Executive Order 13777, “Enforcing the Regulatory Reform Agenda,” by identifying those regulations that can be repealed or modified to reduce burdens while protecting human health and the environment.
ILMA supported President Trump’s efforts to rescind and replace the Waters of the U.S. (WOTUS) rule promulgated by the Obama Administration. The WOTUS rule significantly expanded the jurisdiction of EPA and the Army Corps of Engineers under the Clean Water Act. Implementation of the rule has been stayed while court challenges are being heard.
ILMA recommended one area where EPA could reduce compliance costs, namely revisions to the periodic integrity testing requirements for protected aboveground tanks under the Agency’s Spill Prevention, Control, and Countermeasure (SPCC) rule.
Additionally, under the terms of a sue-and-settle lawsuit, EPA agreed to expand the SPCC rule to include hazardous substance tanks. ILMA said that EPA must engage small businesses as required by the Small Business Regulatory Enforcement Fairness Act (SBREFA) to ensure the rule is narrowly tailored and that it adequately considers alternative regulatory options.
Finally, ILMA addressed concerns with the recent updates to the Hazardous Waste Generator rule, particularly the potential penalties with incidental non-compliance with the conditions for exemption that can result in a business losing its generator status, potentially exposing them to significant liability.
Reducing Regulatory Burdens — 3/29/17
ILMA has submitted detailed comments to the Department of Commerce (DOC) on its Federal Register notice, requesting manufacturers' views on improving the federal permitting process and reducing federal regulatory burdens on their operations. DOC is preparing a report to President Trump, responding to his January 24, 2017 Memorandum, "Streamlining Permitting and Reducing Regulatory Burdens for Domestic Manufacturing."
The Association's comments focused on the regulatory burdens imposed on independent lubricant manufacturers. ILMA highlighted members' concerns with EPA’s threatened ban on medium- and long-chain chlorinated paraffins and issues with the Agency's Spill Prevention, Control and Countermeasure (SPCC) rule and forthcoming "update."
ILMA urged that the Department of Labor (DOL) "overtime rule" be rescinded. The Association also addressed OSHA rules and interpretations, including the electronic reporting and retaliation rule, the "lock-out, tag-out" regulation, HCS 2012 and "walk-around" interpretation. Additionally, the Association discussed burdens created by the National Labor Relations Board and the Equal Employment Opportunity Commission.
"ILMA made the point in its comments to DOC that all regulations are not bad, and Executive branch agencies should have the resources to implement and enforce those rules," said ILMA CEO Holly Alfano. "However, with regulatory compliance costs now over $2 trillion, it's time for federal administrative process reform."
ILMA suggested that DOC be designated as the "voice" for manufacturers in the inter-agency review of rulemakings. For example, DOC could weigh in on whether an agency's draft rule, if finalized, will have a positive or negative effect on exports of products. The Small Business Administration's Office of Advocacy already plays a similar role in rulemakings for small businesses.
"DOC's report to President Trump is scheduled to be delivered by May 24, 2017," Alfano added. "ILMA will continue its efforts in the interim for smarter, cost-effective rules."
Toxic Substances Control Act (TSCA)
The SCAQMD Metal Forging Facilities Rule — 1/19/17
On December 9, 2016, the South Coast Air Quality Management District (SCAQMD) issued a public advisory, recommending that any metal grinding occur within a building and not outside. SCAQMD is the smog control agency for all or portions of Los Angeles. Orange, Riverside and San Bernardino counties in Southern California. In the advisory, SCAQMD noted:
Based on ongoing investigations and air sampling activities conducted by SCAQMD staff, it has been demonstrated that metal grinding activities conducted outdoors can cause odors and release metal particulate emissions to the outside air, affecting surrounding businesses and residents so as to cause a public nuisance in violation of SCAQMD Rule 402 and California Health and Safety Code Section 41700. Also, depending on the toxicity of metals being grinded and/or the intensity and duration of the activity, metal grinding particulate emissions may increase health risks for receptors, which may also be a public nuisance.
The advisory was not part of SCAQMD's rulemaking process for Proposed Rule 1430 — “Control of Emissions from Grinding Operations at Metal Forging Facilities.” ILMA has been participating in the stakeholder meetings on Proposed Rule 1430. The advisory was likely in response to data gathered by SCAQMD in preparation for Proposed Rule 1430.
SCAQMD held its fifth stakeholder meeting on January 11, 2017 on Proposed Rule 1430 and reviewed changes that have been incorporated or expect to be incorporated by the Agency staff into the draft rule before it is published for formal public comment.
ILMA was represented at the meeting that included other industry groups, public health advocates and citizens.
Proposed Rule 1430 is intended to reduce emissions from metal grinding and metal cutting operations at forging facilities. These operations currently are exempt from SCAQMD permits, and the Agency considers them to be an unregulated source category, even though many metal grinding operations have air pollution controls. During its investigation of forging facilities in the Los Angeles area, SCAQMD staff found that certain dry grinding generated toxic particulate emissions of hexavalent chromium.
Importantly for ILMA members, the current draft rule would provide an exemption from rule’s control measures and other requirements if the facility elects to utilize a continuous flood of metalworking fluid in its grinding operations.
ILMA submitted comments on the draft rule, recommending that SCAQMD clarify the “applicability” section of the rule and requesting the addition of two definitions:
A Minimum Quantity Lubricant (MQL) is a lubricant, not a coolant, and does so in "minimum quantities." MQL coats the tool work piece interface with a thin film of lubricant and minimizes heat buildup through friction reduction. MQL fluids can be applied by pre-coating the tool in the MQL fluid or by direct application at the tool work piece interface with a fine mist. MQL fluids are not well suited for grinding operations since grinding processes generate significant heat at the point of cut. Thus more cooling is required than lubricity.
Flood application is the application of a metalworking fluid applied at the grinding wheel/work piece interface that meets all or part of the following conditions and is sufficient to suppress dust, reduce heat and spark generation at the point of cut:
1. Applying the metalworking fluid at a velocity of three (3) feet per second or greater;
2. Applying the metalworking fluid at a volume flow rate of one (1) US gallon per minute or greater; and,
3. Applying the metalworking fluid whereas the nozzle application tip pressure is ten (10) pounds per square inch gauge (PSIG) or greater.
As part of the rulemaking process, SCAQMD scheduled a public workshop for January 19, 2017 and a public consultation meeting for January 25, 2017. Additionally, the Agency’s Stationary Source Committee met on January 20. It was hoped that meeting would lay the procedural foundation for the adoption of a final Rule 1430 by the full SCAQMD board on March 3, 2017.
Nationwide Injunction Against DOL Overtime Rule Issued — 11/23/16
A Texas federal judge has entered a nationwide injunction, blocking the implementation of the Department of Labor's (DOL) overtime rule that was set to go into effect on December 1.
In a 20-page order, U.S. District Judge Amos Mazzant (Eastern District of Texas) said that DOL overstepped its authority by raising the salary threshold for receiving mandatory overtime from $23,660 to $47,476 a year, or from $455 to $913 a week. He said that 21 states and more than 50 business groups, including the U.S. Chamber of Commerce and National Association of Manufacturers, stood a significant chance of winning their consolidated lawsuits on the merits and they would suffer significant financial harm if the rule went into effect as scheduled on December 1.
The Obama administration told the court that it was simply updating the overtime rule to keep up with today's economy, but the judge said the DOL improperly created a de facto salary test for determining which workers fall under the Fair Labor Standards Act's "white collar" exemption. The judge rejected DOL's plea to hold off on an injunction, saying that the overtime rule can await a trial on the merits.
The nationwide injunction means that DOL cannot enforce the new overtime rule until either the judge lifts the injunction or DOL can obtain a countermanding order from the conservative U.S. Court of Appeals for the Fifth Circuit.
It is likely that any final action by the courts will not occur until after President-elect Donald Trump takes office on January 20. Further, with both chambers of Congress being controlled next year by the Republicans, it is unlikely that DOL will be unable to revive its overtime rule that was published last May.
While the DOL overtime rule now is on a temporary hold, many employers nationwide already had changed the way they pay their workers to meet the requirements of the rule.
ILMA will continue to monitor the case and keep members updated on any developments.The Department of Labor has revised the rule related to overtime pay under the Fair Labor Standards Act. The final rule, which is effective December 1, 2016, broadly expands overtime pay eligibility to employees making less than $47,476 annually.
DOL Overtime Rule Halted - Now What? — 11/28/16
ILMA members have been frustrated by EPA’s decision to ban medium- and long-chain chlorinated paraffins — which have been in commerce for decades — as new chemicals. ILMA continues its quest for reason from EPA, and in the meantime, has stepped up and educated other associations, and other industries, and has engaged them as allies in this battle.
The result is an impressive coalition of stakeholders who are all working together to apply pressure. They are taking the issue to Capitol Hill and weighing with EPA. Some of the most influential associations in Washington are on this list, including the American Chemistry Council; the National Association of Manufacturers; the Alliance of Automobile Manufacturers; the Industrial Fasteners Institute; and, the Motor and Equipment Manufacturers. In all, some 17 associations have joined ILMA’s crusade to persuade EPA that their pending action on chlorinated paraffins is wrong.
Chlorinated Paraffins Overview
Regulatory Status of MCCPs and LCCPs — 7/6/16
ACC Peer Review Letter — 6/20/16
Letter to Maria Doa (EPA), Chlorinated Paraffins — 3/21/16
Letter to Greg Schweer (EPA), Critical Uses of MWFs Containing MCCAs and LCCAs — 9/10/15
Letter to Gina McCarthy (EPA), Chlorinated Paraffins — 7/31/15
Letter To Greg Schweer, (EPA), Chlorinated Paraffins Timing — 7/24/15
Letter to Representative from ILMA Member, Chlorinated Paraffins — 7/21/15
Dear Colleague Letter from Representative To EPA, Chlorinated Paraffins — 7/21/15
Chlorinated Paraffins Letter to EPA — 6/10/15
MCCP-LCCP Redacted EPA Review Risk Assessment — 11/1/14
California Assembly Bill 808 — Automotive Fuels and Products ("Obsolete Oils")
The state of California has banned the sale of engine oil that doesn’t meet an active API service classification effective January 1, 2016. While ILMA is supportive of this action, we do believe there is a need for some exceptions to an outright ban. We are working to educate the California Department of Food and Agriculture on where we might need exemptions, and are bringing other stakeholders with us to the table.
ILMA is also involved in this issue on a national level, and bringing it to the attention of the National Conference on Weights and Measures. ILMA is also educating retail trade groups about the obsolete oils issue, and have been in touch with the National Association of Convenience Stores; the Society of Independent Gasoline Marketers; the Petroleum Marketers Association; and others. We are working with these groups to educate retailers about the automotive engine oils that they sell in their gas stations and convenience stores. The response has been very positive.
AB 808 Supplemental Comments Filed with California Weights and Measures — 6/30/16
ILMA Questions California Department of Food and Agriculture Re. Ban on Obsolete Oils — 3/25/16
CDFA's Division Management Standards, Proposed Regulations
California Assembly Bill 808 — Automotive Fuels and Products
California Proposition 65
On January 25, 2016, ILMA submitted comments to California's Office of Environmental Health Hazard Assessment (OEHHA) on its proposed rulemaking for Proposition 65 (Prop 65) "Clear and Reasonable Warnings" that was published on November 15, 2015. ILMA’s comments highlight concerns with the proposed regulatory text that suggests full compliance with the federal Hazard Communication Standard 2012 is sufficient for Prop 65 warnings. Further, ILMA’s comments questioned the inappropriate over-warning that would likely occur if the section regarding petroleum products were finalized as written. In addition to ILMA’s comments, the Association was also a signatory to a coalition comment letter that was led by the California Chamber of Commerce.
Final Comments from Coalition to CalChamber — 6/6/16
ILMA Prop 65 Comments — 1/25/16
Cal Chamber Prop 65 Comments — 1/25/16
ILMA/CalChamber Coalition Prop 65 Comment Letter — 4/8/15
ILMA/SHERA Letter to Monet Vela (OEHHA) — 4/8/15
ILMA/SHERA Letter to Monet Vela (OEHHA) — 6/13/14
Waters of the U.S.
The Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (Corps) issued their final “Waters of the U.S.” in 2015. The final rule identifies six types of waters that are within the two agencies’ jurisdiction and two categories of waters for which a case-by-case determination is required. While EPA and the Corps contend that they have merely clarified their jurisdictional authority under the Clean Water Act (CWA) to regulate waterways and other water bodies in the United States, many states and industry stakeholders view the actions as a power grab. The final rule is the subject of multiple, pending lawsuits and remains a hotly-debated topic on Capitol Hill.
The National Toxicology Program (NTP) completed a two-year study of the metalworking fluid, TRIM® VX. ILMA retained toxicologist Dr. Wally Dalbey to assist in the Association’s review of that study. The Association questioned several aspects regarding the manner in which the study was conducted and the resulting conclusions. Additionally, ILMA argued that OSHA's 2012 Hazard Communication Standard bridging principles preclude extrapolation of the results of the NTP study to other metalworking fluids. Further, ILMA agreed with comments made by members of the peer review panel that similarly questioned NTP’s study methodology and application of the findings.
Letter to Dr. Yun Xie (NTP), Final Technical Report for TRIMⓇVX — 3/18/16
Letter to Dr. Yun Xie (NTP), Abstract and Posted Presentation at Society of Toxicology Meeting — 2/29/16
Letter to Dr. Yun Xie (NTP), TRIMⓇVX — 2/18/16
MasterChemical Comments on NTP TRIMⓇVX — 2/18/16
ILMA NTP TRIM VX Presentations — 2/18/16
The National Toxicology Program also conducted a two-year study of the metalworking fluid, CIMSTAR® 3800. ILMA retained toxicologist Dr. Wally Dalbey to help the Association review and comment on the study, highlighting that there are significant differences between laboratory exposures and occupational exposures and addressing other issues with the manner in which NTP conducted its study.
ILMA Metalworking Fluids NTP MSDS Letter — 6/24/14
Comment on Draft NTP Technical Report — 5/8/14
Global Harmonization System (GHS)
ILMA continues to explain to the Occupational Safety and Health Administration (OSHA) the problems associated with full implementation of the Hazard Communication Standard 2012 (the U.S. version of the Globally Harmonized System for the classification and labeling of chemicals) on independent lubricant manufacturers. Specifically, the Association has shared members' experiences with the impracticality of the singular compliance date for upstream manufacturers and downstream users, and it has raised concerns about differing upstream chemical classifications for the same substances.
Letter to Health Canada re: WHMIS 2015 Provisions — 5/23/16
Letter to OSHA re. HCS 2012 Compliance Concerns — 3/18/15
ULMA GHS Survey Summary — 4/10/14
California S.B. 916 (Oppose) — 3/19/14
REACH Resources for ILMA Members — 7/30/07
OSHA Guidance on "Whistleblower" Cases
OSHA has published guidelines to its regional offices for approving settlements between employers and employees in whistleblower cases to ensure that these settlements do not contain terms that could be interpreted to restrict future whistleblowing. OSHA outlines in the guidelines protected activities for employees, such as filing a complaint with a government agency, participating in an investigation, testifying in proceedings, or otherwise providing information to the government. Click the link below to see the guidelines.
OSHA Whistleblower Guidelines — 8/23/16