EPA Proposes TSCA Inventory Reset Rule - 1/26/17

EPA has published its proposed inventory reset rule for the retrospective electronic notification for chemical substances listed on TSCA Inventory that were manufactured or imported for non-exempt commercial purposes during the ten-year period ending on June 21, 2016. The Agency also will accept voluntary notifications for chemical substances that were processed during the same period. Last year’s amendments to TSCA direct EPA to designate substances on the TSCA Inventory as either “active” or “inactive.”

EPA will require the notifications to be made on “Notice of Activity Form A.” All information will be submitted using the Agency’s electronic reporting tool – the Central Data Exchange (CDX).

Under the proposed rule, chemical manufacturers (and importers) would have to notify EPA within 180 days after the final rule is published in the Federal Register (FR). (The amended TSCA mandates that EPA promulgate the final rule by June 22, 2017.) Processors would have the option to report up to 360 days after publication in the FR. This additional time allows processors to review the information received by EPA from manufacturers (or importers) and ascertain whether any substances important to them are absent. Manufacturers and processors would be exempt from reporting if the information already was submitted to EPA for the 2012 or 2016 Chemical Data Reports.

After the Agency publishes its final list of “active” and “inactive” substances, any business would have to notify EPA on “Notice of Activity Form B” 30 days before the intended manufacturing or processing of any “inactive” chemical.

For Confidential Business Information (CBI) claims, other than for specific chemical identity, the proposed rule notes that companies must submit a specific certification statement that outlines the basis for the CBI claim, which is also must be substantiated. EPA will conduct another rulemaking to more specifically delineate requirements for CBI claims going forward, especially for those claims pertaining to chemical identity.

EPA estimates that it will cost manufacturers $1,376 per submission — which the Agency says will contain information for seven different chemicals. EPA estimates that aggregated compliance will take 86,783 hours and will cost $6.68 million. Interestingly, EPA predicts only 100 processors will complete the notification process after familiarization with the rule at a cost of $0.5 million.

ILMA will submit comments on the proposed rule before the March 14, 2017 comment deadline.

EPA Publishes Proposed TSCA Prioritization Rule - 1/26/17

EPA has published its proposed rule on its internal, risk-based procedures for the prioritization of existing chemicals for risk evaluation under TSCA as either “High-Priority Substances” for risk evaluation, or “Low-Priority Substances” for which risk evaluations are not warranted at the time. Prioritization is the initial step in the new process of existing chemical substance review and risk management activity established by last year’s TSCA amendments.

The revised TSCA requires that the prioritization process for a single chemical last no less than nine months, but no more than 12 months. The Agency used the methodology from its TSCA Work Plan to inform the development of this proposed rule.

“High-Priority Substance” means a chemical substance, without consideration of costs or other non-risk factors, may present an unreasonable risk of injury to health or the environment because of a potential hazard and a potential route of exposure under the conditions of use, including an unreasonable risk to potentially exposed or susceptible subpopulations identified as relevant by EPA. “Low-Priority Substance” means a chemical substance that does not meet the standard for a High-Priority Substance. ?

EPA is proposing four steps for prioritization: pre-prioritization, initiation, proposed designation and final designation:

      (1) During the pre-prioritization stage, EPA will screen chemicals against criteria contained within the revised law (e.g., persistence and bioaccumulation, potentially exposed subpopulations, storage near significant sources of drinking water, conditions of use, and production volume). The Agency notes that it would like to have an initial concept of certain key chemical characteristics before the initiation phase, which starts the statutory-deadline “clock.”

      (2) During the initiation phase, EPA will identify a chemical substance in the Federal Register and allow for a 90-day comment period for industry and the public to submit information to inform the Agency’s proposed designation of a substance as either high or low priority.

      (3) Once all relevant information and data are submitted, EPA will make a preliminary determination that a chemical is high or low priority and will publish that proposed designation in the Federal Register and allow for a second 90-day comment period, along with the information, data, and analyses used to reach the proposed designation.

  (4) Once comments are reviewed, EPA will make its final substance designation. High-priority chemicals will then be subject to risk evaluations while EPA will not take further action on a low-priority substance. EPA notes that its proposed default rule will be to high priority in circumstances where insufficient data are available to make an alternative determination.

It is important to note that final designation of a chemical substance as a High-Priority Substance requires EPA then to conduct a risk evaluation for that chemical substance. Stated differently, a High-Priority Substance designation does not mean that the chemical substance presents a risk to human health or the environment; rather, it means that EPA intends to consider the chemical substance for further risk review and evaluation.

In addition to requesting comment on its overall proposed prioritization process, EPA also requests input in its proposed rule as to whether explicit definitions are appropriate for key terms such as “best available science,” “weight of the evidence,” “sufficiency of the information,” “unreasonable risk,” and “reasonable available information” The Agency asserts that explicitly defining those terms is unnecessary from its vantage point, but wants further input.

ILMA will submit comments before the March 20, 2017 deadline.

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

Chlorinated Paraffins

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
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 TRIMVX — 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), TRIMVX — 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

Chemicals Management

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