NASF Public Policy Update – February 2023
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info@nenasf.org
508-754-2671
MCTA UPDATE
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MassDEP Releases Air Permitting Regulations for Public Comment
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MCTA’s Holiday Reception & Annual Meeting
Register Here Today & Join Us for MCTA’s Holiday Reception & Annual Meeting
New England Chapter -NASF Webinar -Wednesday, September 14th 2022
Visit our Events section for more information
New England Chapter – NASF Spring Seminar Recap
NENASF ANNUAL RCRA TRAINING AND WASTEWATER SEMINAR 2022
The New England Chapter once again was able to offer an in-person seminar for the benefit of its membership and the entire metal finishing community. Although the Chapter is still offering some virtual educational events, the Board felt strongly that there is a substantial benefit to having in-person events where the attendees can have the opportunity to network with fellow metal finishing professionals.
The event, held May 4, 2022 at the Courtyard Marriott in Marlborough, Massachusetts, was a four-hour Seminar covering mandatory annual RCRA training along with updates on hot button wastewater treatment issues, and was preceded by a luncheon.
Alisa Werst, a Senior Project Scientist at HRP Associates in Cromwell, Connecticut, was the instructor for the mandatory RCRA training portion of the Seminar. She gave a fast paced compelling and interactive presentation that was designed to provide both entry level and experienced environmental managers with a comprehensive review of state and federal hazardous waste regulations, all designed to meet the annual RCRA training requirements.
Brian Morrill, Associate Principal and Vice President at GZA GeoEnvironmental, offered a presentation on how to prepare for an environmental inspection with emphasis on how the actual inspections have been modified as a result of the COVID world in which we are living. This was followed by a presentation by Jim Occhialini, Vice President and Specialty Services Group leader at Alpha Analytical, who spoke on the rapidly evolving PFAS testing requirements the metal finishing community is being subjected to by municipalities and sewer authorities.
This seminar, and other beneficial educational events offered by the New England Chapter, are all part of this chapter’s commitment to the metal finishing community. Thank you for the combined efforts of the NENASF Board members, the Chapter Membership and the dedicated and talented members of the Metal Finishing Community as a whole who have offered their time and talents to making events like this possible.
NASF Public Policy Update
March 2022
With the NASF Washington Forum slated for next week, the Biden Administration today announced plans to expand domestic production of critical minerals. This follows the release of White House plans a few weeks ago to strengthen U.S. supply chains and invest in manufacturing and infrastructure. The EPA issued its 5-year strategic plan this week, which includes a new round of regulation for the metal finishing industry. The agency is also moving to adopt ASTM’s new PFAS standard for site assessments to limit liability for cleanups.
This month’s update provides a summary of these and other key developments in Washington and states that are impacting the surface finishing industry.
- NASF Washington Forum, April 4-6, 2022 – NASF is holding its annual Washington Forum for the first time since 2019, with briefings from national and global experts on legislative, regulatory and strategic management issues impacting the surface finishing industry. Highlighted will be the NASF Economic Impact Report, which profiles the industry’s output and contribution to the U.S. economy.
- President Biden Invokes the Defense Production Act to Boost Critical Minerals Production in U.S. — President Biden this week took steps to increase domestic production of critical minerals needed for advanced technologies like electric vehicles, in an attempt to reduce the nation’s reliance on foreign suppliers. He invoked the Defense Production Act to give the federal government more avenues to provide support for the mining, processing and recycling of critical minerals, such as lithium, nickel, cobalt, graphite and manganese.
- EPA Releases Strategic Plan Highlighting Priorities for 2022-2026 — EPA’s final strategic plan for fiscal years 2022-2026 integrates climate change and environmental justice (EJ) throughout the agency’s decision making and programs, and includes a major new focus on bolstering civil rights enforcement in environmental matters.
- White House Releases Plan to Secure Critical Supply Chains and Revitalize U.S. Manufacturing – The Biden Administration released new reports from key agencies on critical supply chains, potential vulnerabilities, and a plan to revitalize U.S. manufacturing.
- EPA Moves to Adopt ASTM’s New PFAS Standard for Site Assessments to Limit Liability for Cleanups – EPA taking steps to adopt new ASTM standards for conducting site assessments for PFAS contamination that could help limit cleanup liabilities for property owners.
- Court Certifies Massive Class in Landmark PFAS Suit – New litigation seeking industry-funded, independent, nationwide health studies and testing to determine the health effects of numerous PFAS found in the blood of nearly all Americans for a broad class of plaintiffs.
- California Adds PFOA to List of Carcinogens, Triggering More Prop 65 Requirements for PFAS Compounds – California continues to add PFAS to list of carcinogens and reproductive toxins to trigger additional labeling and warning requirements under Prop 65.
A more detailed summary of these issues is provided below.
NASF Washington Forum, April 4-6, 2022
The NASF Washington Forum for the surface finishing industry will be held April 4-6, 2022 at the Ritz Carlton in Pentagon City, VA. The Forum will feature briefings from national and global experts on pertinent policy, regulatory, and strategic management issues impacting the surface finishing industry, as well as the latest outlook on the fall midterm elections.
The schedule includes a Welcome Reception on the evening of April 4 and policy briefings on April 5 covering U.S. competitiveness and trade policy, EPA PFAS wastewater rules underway for finishing, the labor and workplace agenda, and automotive and defense topics.
Keynote speakers include Amy Walter, National Editor of the Cook Political Report and Jake Sherman, Founder of Punchbowl News. A Tuesday April 5 evening reception will follow.
More information on the Washington Forum is available on the NASF website at: https://nasf.org/events/washington-forum/.
President Biden Invokes the Defense Production Act to Boost Critical Minerals Production in U.S.
President Biden took steps this week to increase domestic production of critical minerals needed for advanced technologies like electric vehicles, in an attempt to reduce the nation’s reliance on foreign suppliers.
He invoked the Defense Production Act to give the federal government more avenues to provide support for the mining, processing and recycling of critical minerals, such as lithium, nickel, cobalt, graphite and manganese, primarily based on their use in large capacity batteries for electric cars and clean energy storage systems
“We need to end our long term reliance on China and other countries for inputs that will power the future,” Mr. Biden said during remarks at the White House, where he also announced the release of 1 million barrels of oil per day from the Strategic Petroleum Reserve.
The Defense Production Act, a Cold War-era statute, gives the president access to funding and other enhanced powers to shore up the American industrial base and ensure the private sector has the necessary resources to defend national security and face emergencies.
In a determination issued Thursday, the president said the United States depended on “unreliable foreign sources” for many materials necessary for transitioning to clean energy, and that demand for such materials was projected to increase exponentially.
The President directed the Secretary of Defense to bolster the critical mineral supply by supporting feasibility studies for new projects, encouraging waste reclamation at existing sites, and modernizing or increasing production at domestic mines for lithium, nickel, cobalt, graphite and other so-called critical minerals.
Under the new memorandum, the Defense Department would also conduct a survey of the domestic industrial base for critical minerals and submit that to the president and Congress.
The actions under review would include funding studies and the expansion or modernization of new and existing sites.
EPA Releases Strategic Plan Highlighting Priorities for 2022-2026
The EPA this week issued its final strategic plan for fiscal years 2022-2026, which integrates climate change along with an unprecedented focus on environmental justice (EJ) throughout the agency’s decision making and programs, and includes a major new focus on bolstering civil rights enforcement in environmental matters.
The plan aims to communicate EPA’s vision, priorities, and strategies to accomplish the agency’s mission over the next several years and also serves as the framework for annual planning and budgeting and development of work plans.
The agency’s plan twice mentions the metal finishing industry specifically, including its high-priority rule making focused on metal finishing:
“EPA has determined that effluent limitation guidelines under the CWA should be developed to address PFAS in industrial wastewater discharged by the PFAS manufacturing and the metal finishing industries and is initiating
rulemaking to do so. EPA is committed to lifting up the voices of all communities, particularly those who have suffered disproportionately from the impacts of PFAS; supporting those least able to access technical assistance, filtration, and other control and remediation solutions; and working together to
address this complex environmental challenge. EPA will confront the issue of PFAS by fully leveraging the Agency’s authorities and working closely with federal, Tribal, state, and local partners.”
NASF is working closely with EPA officials in Washington and in the agency’s regional offices — as well as with key states — to exchange information and data and determine appropriate regulatory options.
NASF will host EPA officials at the Washington Forum next week for an outlook and discussion with NASF members at this early stage of rulemaking.
Recent White House Plan to Secure Critical Supply Chains and Revitalize U.S. Manufacturing
On February 24, 2022, the Biden Administration announced its plan to strengthen critical supply chains and invest in U.S. manufacturing and infrastructure.
Seven agencies released six reports outlining key areas of vulnerability and policy recommendations to strengthen U.S. supply chains in critical industrial sectors.
Many of the supply chain vulnerabilities identified in the reports address longstanding challenges in the U.S. industrial base – such as a lack of domestic manufacturing capacity, aging infrastructure, and a skilled workforce deficit – that require long-term solutions.
The reports were in response to Executive Order (E.O.) 14017, “America’s Supply Chains,” signed last year on February 24, 2021, that launched a comprehensive interagency review to identify risks in the supply chains for products deemed critical to U.S. national and economic security, including:
- semiconductor manufacturing and packaging;
- large capacity batteries;
- critical and strategic minerals; and
- pharmaceuticals and active pharmaceutical ingredients.
These reviews have been spearheaded by the Department of Commerce (DOC), the Department of Energy (DOE), the Department of Defense (DOD), and the Department of Health and Human Services (HHS).
The initial 100-day reports that were announced on June 8, 2021 examined a wide range of supply chain risks and identified five main sources of vulnerabilities:
- insufficient U.S. manufacturing capacity;
- misaligned incentives and “short-termism” in private markets;
- strategic industrial policies adopted by competitor and allied nations, including China and the E.U., to advance their domestic competitiveness;
- geographic concentration in global sourcing; and
- limited international coordination on supply chain resilience.
The 100-day reports also made a number of recommendations and announced immediate steps the Administration would take to strengthen U.S. supply chains while continuing to analyze potential long-term solutions to these problems.
The recently issued the one-year reports detailed the interagency working group findings of year-long reviews of the following six critical industrial base sectors:
- Defense;
- Public health and biological preparedness;
- Information and communication technology;
- Energy;
- Transportation; and
- Supply chains for production of agricultural commodities and industrial food products.
There are several common themes and findings across the reports, including:
- Training – any supply chain action must include significant investment in training and education of U.S. workers in critical industrial base sectors;
- Infrastructure and Manufacturing – need to invest in infrastructure and expand domestic manufacturing capacity;
- Standards – the need to work with foreign partners to establish global standards to prevent supply chain vulnerabilities; and
- Resilience – recommend that the U.S. continue to diversify supply chains to improve resilience to global crises.
The reports did not create new programs to address the supply chain vulnerabilities that they identify, but did call on Congress to provide funding for new domestic manufacturing initiatives.
Some of the key findings from the six interagency reports included the following.
Defense – The DOD analysis of the defense industrial base found vulnerabilities in large capacity batteries, specifically lithium batteries, and casting and forging of metals and microelectronics.
To strengthen these areas, DOD recommended that the federal government: invest in training doctoral-level skilled labor; expand industrial security, counterintelligence, and cybersecurity; expand domestic additive manufacturing; and engage more small businesses as key members of the defense supply chain.
Information and Communication Technology — The Department of Homeland Security (DHS) and DOC analysis of the information and communication technology industrial base found that while U.S. technology companies lead the world in innovation and development, most of these products are made in China.
The U.S. lacks the skilled work force to support re-shoring of information and communication technology supply chains, leaving them vulnerable to continued disruptions.
To alleviate these vulnerabilities, the U.S. should invest in domestic manufacturing, work to improve international standards, and increase monitoring of information and communication technology supply chains.
Energy – The DOE analysis of the energy sector found that the U.S. has an opportunity for sustainable growth of its domestic clean energy supply chains, but currently lacks an adequate manufacturing raw materials and domestic production capabilities.
The report also recommended that Congress enact legislation to provide tax incentives for domestic clean energy manufacturing and funding for domestic workforce training and that the federal government leverage foreign direct investment in U.S.-based clean energy technology manufacturing.
Public Health – The HHS analysis of the public health sector found that offshore manufacturing for personal protective equipment (PPE) and other health care supplies are a critical vulnerability and that pressure to reduce prices has resulted in a highly-concentrated manufacturing base that create vulnerabilities in supply chains.
The report recommended that the U.S. invest in domestic manufacturing; stockpile critical items; and improve workforce development.
Transportation — The Department of Transportation (DOT) analysis of the freight and logistics supply chains found that U.S. ports are a key vulnerability and a bottleneck of supply chains and that domestic transportation infrastructure requires significant investment to alleviate supply chain vulnerabilities.
The report recommended that the federal government invest in domestic infrastructure and building the workforce in this sector.
Agriculture and Food Production — The Department of Agriculture (USDA) analysis identified multiple vulnerabilities, including: concentration of industrial food production; labor shortages; climate change; disease to livestock and poultry; transportation bottlenecks; and trade disruptions. USDA recommended taking action to address these challenges through existing and additional funding
These reports take a significant step to identify numerous vulnerabilities for critical supply chains and reaffirmed the importance of U.S. manufacturing.
Although they did not provide detailed solutions to address the vulnerabilities, they did call upon Congress to provide funding to support new domestic manufacturing initiatives.
This increased focus on manufacturing is important for industries in critical supply chains, such as the surface finishing industry. Even though it may take time to implement these manufacturing initiatives, surface finishing companies should begin to position themselves for expanded opportunities in these critical supply chains.
The NASF will continue to work closely with federal officials and industry partners and provide further updates to NASF members. If you have any questions or would like additional information on this issue, please contact Christian Richter or Jeff Hannapel with NASF at crichter@thepolicygroup.com or jhannapel@thepolicygroup.com.
EPA Moves to Adopt ASTM’s New PFAS Standard for Site Assessments to Limit Liability for Cleanups
EPA is moving quickly to adopt a recently revised industry standard that added per- and polyfluoroalkyl substances (PFAS) into its methods for assessing potentially contaminated properties.
This clears the way for certain parties to use the standard as they seek Superfund liability waivers at brownfield sites under the “all appropriate inquiry” (AAI) rule.
The move is significant because it could provide liability relief to prospective purchasers and other potentially responsible parties at brownfields or other sites contaminated with PFAS.
EPA is scheduled to publish in the Federal Register a direct final rule as well as a proposed rule to incorporate the updated American Society for Testing and Materials (ASTM) standard — known as ASTM E1527-21 standard practice — into its “Standards and Practices for All Appropriate Inquiries.”
The direct final rule will become effective 60 days after publication without further notice, unless the agency receives adverse comments, at which point the direct final rule would be withdrawn and the proposed rule would be the vehicle EPA uses to address comments and eventually finalize the rule.
The timing on this action is significant because EPA is poised to list PFOS and PFOA as hazardous substances under the Superfund law, a measure that is expected to drive massive new cleanup liability at many sites.
The upcoming rule would, for the first time, allow prospective purchasers an opportunity to limit their CERCLA liability for PFAS contamination by conducting appropriate site assessments.
ASTM approved changes to its site assessment standard in November 2021, suggesting property owners or other users may include PFAS in site assessments of potentially contaminated properties if the substance is regulated by the state.
ASTM specifically approved changes to its Phase I environmental site assessments standard, including terminology revisions, new definitions and a footnote addressing PFAS, among other updates.
In its direct final rule, EPA references parties that may want to make use of the updated ASTM standard in order to secure liability protection. Parties may wish to consider PFOS and PFOA during due diligence activities now — even before any final designation — depending on the site’s prior use, surrounding area, and future intended use.
With increased regulatory attention and litigation over the management and remediation of PFAS, this revised ASTM standard is a welcome tool to address major risks and liabilities linked to PFAS.
NASF will continue to monitor these developments and provide updates to NASF members. If you have any questions or would like additional information on this issue, please contact Jeff Hannapel with NASF at jhannapel@thepolicygroup.com.
Court Certifies Huge Class in Landmark PFAS Suit, Eyes Possible Expansion
A federal court recently certified all Ohio residents who have small amounts of per- and polyfluoroalkyl substances (PFAS) in their blood as a class eligible to pursue a suit against chemical manufacturers, while leaving the door open for residents of other states to be included.
The suit, Kevin D. Hardwick v. 3M Company, et al., was filed in the U.S. District Court for the Southern District of Ohio, and could drive new PFAS science and possibly future Superfund litigation.
The named plaintiff in the lawsuit, an Ohio firefighter, is seeking industry-funded, independent, nationwide health studies and testing to determine the health effects of numerous PFAS found in the blood of nearly all Americans.
In this litigation the plaintiff claims that manufacturers and distributors of PFAS “knew for decades that these chemicals presented a serious risk of disease and harm, engaged in a systematic effort to conceal and deny the dangers of PFAS, misled regulators and the public, and made billions of dollars in profits while contaminating millions of people without their knowledge.” The industry defendants vigorously deny the allegations.
Class action litigation has been driving a lot of the science on PFAS damages through the creation of science panels. Such suits could also provide a roadmap for future Superfund litigation once EPA lists PFOS and PFOA as hazardous substances under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA).
Success on this claim could have repercussions in the regulatory arena and other PFAS litigation, particularly after PFOS and PFOA are designated hazardous substances under CERCLA, thereby providing clear legal authority for people to pursue cleanup actions for PFAS contamination.
Increased litigation can potentially have a significant impact on surface finishing operations that used PFAS. If you would like additional information on this issue, please contact Jeff Hannapel with NASF at jhannapel@thepolicygroup.com.
California Adds PFOA to List of Carcinogens, Triggering More Prop 65 Requirements for PFAS Compounds
Adding regulatory requirements for PFAS compounds, the California Office of Environmental Health Hazard Assessment (OEHHA) added PFOA to the list of chemicals known to cause cancer.
OEHHA’s determination was based on the National Toxicology Program (NTP) formal identification of PFOA as a chemical that causes cancer.
The listing will create new label requirements under Prop 65 for any product sold in California that contains PFOA, and may also increase enforcement actions targeting those products.
This recent listing for PFOA is the latest in a series of actions in California regarding PFAS compounds:
- November 10, 2017 – PFOS and PFOA listed as substances that cause reproductive harm
- March 11, 2021 – Notice of intent to list PFOA as a carcinogen
- March 26, 2021 — Notice of intent to list PFOS as a carcinogen
- March 26, 2021 – Notice of intent to conduct review of four PFAS for possible reproductive toxicity (PFDA, PFHxS, PFNA, and PFUnDa)
- December 22, 2021 – PFOS listed as a carcinogen (effective December 24, 2022)
- December 31, 2021 – PFNA listed as chemical capable of causing male reproductive harm
- February 25, 2022 – PFOA listed as a carcinogen (effective immediately)
California’s Prop 65 was passed with the intention of providing consumers with information regarding potentially cancer-causing agents in products that would allow consumers to make an informed decision as to whether to purchase the product.
Prop 65 requires “clear and reasonable” warnings to be placed on products that can expose a consumer to a chemical that the State of California determines may be cancer-causing or cause reproductive harm.
Prop 65 penalties can be as high as $2,500 per violation per day. Companies often face the added prospect of third-party lawsuits and paying the other side’s attorney fees, as a result, most Prop 65 matters carry substantial financial risk and are very expensive to litigate.
Companies that were already 1) testing products, 2) conducting due diligence to determine whether any of its products contain any of the PFAS determined to be cancer-causing or cause reproductive harm, and 3) ensuring proper warning labels on applicable PFAS-containing products to comply with Prop 65’s strict regulatory requirements must now factor in the new PFOA carcinogenic determination.
This may require modifications to any necessary warning labels, unless a business is already availing itself of a safe harbor warning that covers both cancer and reproductive harm, or if any exposure would be below safe harbor levels.
As more PFAS compounds are identified as carcinogens or reproductive toxins, companies doing business in California must act now to determine if any products sold in the State of California contain any of the regulated PFAS compounds.
Supply chain analysis is a critical part of the process. For companies with products that contain the PFAS that are the subject of the notices, precise warnings will need to be adhered in the proper way and location (whether on the product packaging, on a website prior to the consumer purchasing the product, etc.) that may not be as simple as it sounds.
NASF will continue to monitor Prop 65 PFAS developments and provide updates to NASF members. If you have any questions or would like additional information, please contact Jeff Hannapel with NASF at jhannapel@thepolicygroup.com.
NASF 1000
The NASF 1000 program was established to ensure that the surface finishing industry would have resources to effectively address regulatory, legislative and legal actions impacting the industry, NASF members and their workplaces.
All funds from the NASF 1000 program are used exclusively to support specific projects and initiatives that fall outside the association’s day-to-day public policy activities.
The commitment to this program is one of the most vital contributions made in support of surface finishing and directly shapes the future of the industry.
The sustained commitment from industry leaders has helped the NASF remain strong and credible in informing regulatory decisions across the nation.
Specific projects funded through the NASF 1000 make a measurable difference in how the industry navigates emerging challenges, communicates credibly with policy makers, and advocates for a strong science base for rules or standards that affect surface finishing.
MCTA UPDATE
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NASF Public Policy Update January 2022
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NASF Public Policy Update December 29, 2021
NASF Public Policy Update
December 29, 2021
As the year comes to a close, speculation abounds over whether the U.S. Supreme Court will block OSHA from enforcing its emergency COVID-19 workplace standard for large employers – the Court will hold a special hearing on January 7, 2022 as OSHA delays enforcement efforts until January 10, 2022. See the detailed update with an FAQ link further below.
Agencies: The Centers for Disease Control just updated its COVID-19 isolation and quarantine guidance that cuts from 10 to 5 days the recommended isolation period for asymptomatic individuals.
White House: President Biden signed bipartisan defense policy legislation authorizing $770 billion for the Pentagon.
Congress: Democrats are assessing options for advancing pieces of their economic and social agenda when they return from the holidays after failing to win passage of the $2.5 trillion package this year.
Action to Continue Next Year: This month’s update wraps up a year of action from NASF. Just a few notable recent developments of many more anticipated in 2022:
- Congress took up legislation specifically targeting the surface finishing industry for the first time in recent memory with a focus on new discharge restrictions.
- The Biden administration’s EPA launched a multi-year rulemaking to assess the impact of the finishing industry’s wastewater discharges as well on human health and the environment, with an option to impose more stringent controls.
- California and other states have been increasingly active with proposed bans, product disclosure rules and other initiatives that will impact finishing.
The agenda in the coming year will be challenging and there will be much to accomplish. In January we’ll have some early indicators on what’s likely to unfold in the midterm election year.
December Issue Summary:
CDC Shortens Isolation and Quarantine Recommendations – The Centers for Disease Control (CDC) yesterday announced it was shortening its recommended isolation and quarantine periods for the general population.
OSHA’s COVID-19 Standard for Employers is Back On – In the latest decision in a flurry of litigation, the U.S. 6th Circuit Court of Appeals on December 17, 2021, reversed a nationwide stay that had prevented OSHA from implementing its COVID-19 Emergency Temporary Standard (ETS) for the workplace. OSHA has announced it will delay its enforcement efforts until January 10, 2022 as Supreme Court has scheduled an expedited review of the ETS for January 7, 2022.
President Biden Signed the $770 billion Defense Policy Bill – The President signed into law the annual National Defense Authorization Act (NDAA) this week. The legislation, which authorizes funding the Pentagon’s activities for fiscal year 2022, recently passed the Senate on December 15 by a wide margin of 88-11, adding $25 billion more than the White House originally requested.
EPA Prepares for Drinking Water Standard for PFAS – EPA released stringent health-based levels to serve as guidance for setting drinking water standard for PFOS and PFOA.
EPA Looks to Expand RCRA Corrective Action Authority to Address PFAS Contamination – EPA announces that it intends to list four PFAS as hazardous constituents under federal hazardous waste laws and expand its corrective action authority for cleanup of releases of PFAS and other emerging contaminants.
ProPublica Releases Map of Toxic “Hotspots” from Industrial Air Emissions – Areas identified by zip-code are described as “sacrifice zones” that threaten disadvantaged communities with industrial air emissions.
EPA Proposes to Formally Scrap Trump “Waters of the US” Rule – EPA signed a proposed rule to scrap the Trump-era WOTUS rule and replace it with pre-2015 regulations until it can develop a new revised WOTUS rule.
More details on these topics are below:
CDC Shortens Isolation and Quarantine Recommendations
The Centers for Disease Control (CDC) announced this week it was shortening its recommended isolation and quarantine periods for the general population.
The CDC’s statement lays out the new guidance, which recommends five days of isolating instead of 10 for people who have tested positive for Covid-19 but are asymptomatic. The CDC’s actual Isolation Guidance webpage, however, was not yet updated at press time.
Among other highlights the CDC statement notes that “[b]oth updates [to the isolation and quarantine periods] come as the Omicron variant continues to spread throughout the U.S. and reflects the current science on when and for how long a person is maximally infectious.”
The CDC statement, including summaries and graphics for easy reference, can be found here.
OSHA Vaccine Mandate Rule Back On, U.S. Supreme Court Schedules Expedited Hearing
OSHA’s issuance on November 5, 2021 of its long-anticipated emergency temporary standard for COVID-19 spawned a wave of litigation that has left many employers confused and frustrated.
Lower courts have since been split on the constitutionality of the standard which, as we summarized in last month’s report, requires a vaccine-or-test requirement for employers with more than 100 employees.
In response to a number of lawsuits, the 5th Circuit Court of Appeals issued a temporary stay of OSHA’s enforcement, which was directly followed by the 6th Circuit Court of Appeals decision on December 17, 2021, that allowed the rule to go forward.
In response to petitioners’ requests to reinforce the stay, the U.S. Supreme Court has now scheduled a special hearing for a group of federal vaccine mandate cases on January 7, 2022.
OSHA Enforcement Discretion until January 10, 2022
OSHA has clarified that it will use its enforcement discretion and not issue citations for violations regarding ETS testing requirements until Jan. 10, 2022, if employers are exercising “reasonable, good-faith efforts” to come into compliance with the standard.
More guidance will be made available in early January in light of the upcoming oral arguments before the Court and other likely announcements. In the meantime, NASF members with more than 100 employees should consider any steps that might be be taken to ensure compliance with OSHA’s vaccine and testing mandates in the event the emergency standard survives in the coming weeks.
To assist members in understanding the basics and finer points of the standard, our colleagues at Conn Maciel Carey in Washington have shared an extensive list of Frequently Asked Questions for companies to consult.
President Biden Signs Bipartisan $770 Billion Defense Policy Bill
The President this week signed into law the annual National Defense Authorization Act (NDAA) this week. The legislation, which authorizes funding for the Pentagon’s activities for fiscal year 2022, passed the Senate on December 15 by a wide margin of 88-11.
An earlier version passed the House by a vote of 316-113 in September. The bill authorizes $25 billion more than the White House originally requested. A summary of the bill can be found here.
The show of bipartisan support may nudge congressional leaders toward a compromise package on federal spending bills, none of which have yet been agreed to – Congress instead has passed two short term bills to keep the government funded at last year’s levels until its self-imposed deadline of February 18.
EPA Releases Draft Health-Based Levels for PFAS in Drinking Water
As part of its PFAS Strategic Roadmap, EPA committed to developing a proposed drinking water standard for PFOS and PFOA by Fall 2022 and a final standard by Fall 2023.
As part of this process, EPA must first set a health-based maximum contaminant level goal (MCLG). The Safe Drinking Water Act (SDWA) requires EPA to consider cost and technical feasibility when setting maximum contaminant levels (MCLs) as the enforceable drinking water standard.
Draft Values Much Lower
EPA recently released draft risk values for PFOS and PFOA that are orders of magnitude lower than EPA calculated in 2016, raising potential new challenges for drinking water utilities.
EPA is proposing a reference dose (RfD) (or greatest amount an adult can ingest daily over the course of a lifetime without health risks) of 1.5 x 10-9 milligrams/kilograms (mg/kg)-day for PFOA and an RfD of 7.9 x 10-9 mg/kg-day for PFOS.
This is significantly more stringent than the RfD values of 2 x 10-5 mg/kg-day for both chemicals that EPA used in setting its 2016 lifetime health advisories of 70 ppt for the chemicals.
Using the same formula EPA used in developing the 2016 health advisories, and adjusting it to be protective of children, would result in a range of 6 to 7 parts per quadrillion (ppq), or 0.006 to 0.007 ppt, for PFOA and 30 to 37 ppq, or 0.030 to 0.037 ppt, for PFOS — levels that are below most laboratories’ detection limits.
Furthermore, if EPA finalizes its proposed health-based conclusion that PFOA is a likely carcinogen, then the MCLG would be zero. However, any final enforceable drinking water standard would most likely be some number above zero because economic and technical feasibility considerations for setting the MCLs. Many environmental organizations have advocated for an MCL of 1 ppt for all PFAS.
Non-enforceable Health Advisories are De Facto Limits
In addition to any MCLG, EPA is also likely to issue revised non-enforceable health advisories before setting MCLs. Even though the health advisories are non-binding, for drinking water utilities they are in practice de facto MCLs due to public pressure.
With more stringent PFOA and PFOS health advisories, as well as an upcoming first-time health advisory for additional PFAS, utilities will be forced to make decisions about whether to take contaminated wells offline or to buy wholesale water from other suppliers.
On November 16, 2021, EPA released a press release indicating that it had submitted the draft risk values for PFOS and PFOA to the Science Advisory Board (SAB).
Outlook for Action
While the agency has not set a target date for revised PFOA and PFOS advisories, EPA has indicated that it “will move as quickly as possible to issue updated health advisories for PFOA and PFOS that reflect” the new science and input from the agency’s Science Advisory Board, which is scheduled to review the PFOS and PFOA documents in December 2021 and January 2022.
While EPA has a lot of work to do before it can issue a proposed drinking water standard for PFOS and PFOA next year, it appears that the MCLG and likely health advisories for PFOS and PFOA in drinking water could be very stringent (and possibly below detection limits).
NASF will continue to work with EPA officials and provide critical updates on this rulemaking to NASF members.
If you have any questions or would like more information regarding the draft health-based levels that will be used to set drinking water standards for PFOS and PFOA, please contact Jeff Hannapel or Christian Richter with NASF at jhannapel@thepolicygroup.com or crichter@thepolicygroup.com.
EPA to List PFAS as RCRA Hazardous Constituents and Trigger Broader Corrective Action Authority
EPA in October responded to a petition submitted by the Governor of New Mexico by announcing that it would initiate two new rulemakings under the Resource Conservation and Recovery Act (RCRA) related to perfluoroalkyl and polyfluoroalkyl substances (PFAS).
The Agency has not yet formally proposed either rule.
Rulemaking to Add Four PFAS Chemicals to the RCRA List of Hazardous Constituents
EPA announced it intends to add four PFAS chemicals: PFOA, PFOS, PFBS, and GenX to the list of RCRA “hazardous constituents” (40 C.F.R. Part 261, Appendix VIII).
EPA has not indicated that it intends at this time to list the four chemicals as “hazardous wastes” that would be subject to the full range of regulatory controls under Subtitle C of RCRA.
Listing the chemicals as hazardous constituents would, however, trigger cleanup authority under the RCRA “corrective action” program.
Under the RCRA corrective action program, permitted treatment, storage or disposal of hazardous waste must institute corrective action as necessary to protect human health and the environment for all releases of hazardous waste or constituents from any solid waste management unit at the facility.
Accordingly, listing the PFAS chemicals as hazardous constituents would allow the use of the RCRA corrective action program to cleanup releases of PFAS.
Rulemaking to Broaden RCRA Corrective Action Authority
In its October 26, 2021 response to the Governor of New Mexico, EPA also announced that it would initiate a rulemaking to “clarify” that the corrective action program provides authority to require investigation and cleanup for wastes that meet the RCRA statutory definition of hazardous waste, rather than just wastes that meet the narrower regulatory definition that establishes the scope of EPA’s hazardous waste management standards under RCRA Subtitle C.
This would apparently amend the rules to apply the broader statutory definition for purposes of corrective action. If such a change were adopted, EPA could potentially require permitted facilities to undertake corrective action not only for releases of wastes that are listed as hazardous wastes or characteristically hazardous (as well as for releases of listed hazardous constituents, as discussed above), but also for releases of wastes covered by the broad statutory definition of hazardous waste.
Accordingly, EPA could potentially address releases of all PFAS chemicals (not just the four listed as hazardous constituents) as well as other emerging contaminants of concern without going through the process of listing them as hazardous constituents and without expanding the hazardous waste listings or characteristics.
This potential rulemaking to broaden RCRA corrective action authority to cover PFAS and other emerging contaminants could have significant impacts for facilities where these chemicals were used.
Regulatory agencies could have an additional enforcement tool to require the cleanup of PFAS that have been released to the environment. NASF will continue to monitor this rulemaking effort and provide updates to NASF members. If you have any questions or would like additional information on this issue, please contact Jeff Hannapel with NASF at jhannapel@thepolicygroup.com.
New Map Released of Toxic Hotspots from Industrial Air Emissions
Investigative journalist group ProPublica has released an analysis indicating where toxic air pollution is emitted from industrial sources and could be elevating cancer risk in their communities. The report and detailed map are available on the ProPublica website at: https://projects.propublica.org/toxmap/.
ProPublica’s analysis of five years of modeled EPA data identified more than 1,000 toxic hot spots across the country and found that an estimated 250,000 people living in them may be exposed to levels of excess cancer risk that the EPA deems unacceptable.
The EPA’s threshold for an acceptable level of cancer risk is 1 in 10,000, meaning that of 10,000 people living in an area, there would likely be one additional case of cancer over a lifetime of exposure.
EPA has also said that the added level of cancer risk from air pollution should be far lower, 1 in a million. The ProPublica map highlights areas where the additional cancer risk is greater than 1 in 100,000 — 10 times lower than the EPA’s threshold.
The group argues that the EPA has never released this data in a way that allows the public to understand the risks of breathing the air where they live.
Using the reports submitted between 2014 and 2018, ProPublica calculated the estimated excess cancer risk from industrial sources across the entire country. Individual manufacturing facilities can be identified through a search of zip codes. In many cases the risks identified by this report may be significantly overestimated.
The group also asserts that the EPA allows polluters to turn neighborhoods into “sacrifice zones” where residents breathe carcinogens. The report claims that census tracts with majority non-white populations experience about 40 percent more cancer-causing industrial air pollution on average than tracts where the residents are mostly white.
Environmental advocacy groups and community organizations are using this tool to identify areas of potential concern with an emphasis on environmental justice. It may be advisable to review this report and map to ensure that the information provided for your area is accurate.
If you have any questions or would like additional information on the report and map of toxic hotspots, please contact Jeff Hannapel or Christian Richter with NASF at jhannapel@thepolicygroup.com or crichter@thepolicygroup.com.
EPA Scraps Trump “Waters of the US” Rule and Intends to Propose Refined Definition
On November 18, 2021 EPA and the Army Corps of Engineers, signed a proposed rule that would scrap the Trump-era Navigable Waters Protection Rule (NWPR), and replace it with more restrictive pre-2015 rules.
The Trump Administration repealed the 2015 Waters of the United States (WOTUS) rule in 2019, and in June 2020, replaced it with the new NWPR that narrowed the definition of WOTUS that were subject to federal authority under the Clean Water Act. The NWPR was the subject of substantial legal challenges and recent federal court rulings vacated the Trump-era rule.
This recent action to scrap the NMPR is the next step to solidify the rules of the road for a stable implementation of WOTUS while the agencies continue to consult with stakeholders to refine the definition of WOTUS in both implementation and future regulatory actions.
Outreach to Achieve a Durable Definition
EPA chief Michael Regan noted that “whiplash” from shifting definitions of WOTUS has created uncertainty and that EPA is continuing outreach to find a definition that protects public health and the environment, including downstream communities, while supporting agriculture and other industries reliant on clean water.
Earlier this year Reagan said that EPA does not intend to simply pull the Obama rule off the shelf after the agency has learned so much over the years.
Changes to the rule are anticipated because Regan that EPA officials have learned lessons from both versions of the rule, have seen complexities in both approaches, and have determined that both rules did not necessarily listen to the will of the regulated community and public interests.
EPA’s action decision drew a partisan response, with Republicans warning the rule would frustrate infrastructure and Democrats stating that the proposal paves the way to develop a definition that provides certainty and better protects our nation’s precious waters and wetlands, while also supporting economic opportunity and industries that depend on clean water.
It is not clear yet when EPA will release a new definition for what constitutes a “water of the U.S.,” and which wetlands and streams will be protected under the rule. It is likely that the new WOTUS rule will more closely resemble the 2015 Obama WOTUS rule compared to the 2020 Trump WOTUS rule.
More information on WOTUS and recent regulatory action is available on the EPA website at www.epa.gov/wotus. If you have any questions or would like additional information about the WOTUS rule development process, please contact Jeff Hannapel at jhannapel@thepolicygroup.com.
Support the NASF 1000 Today!
The NASF 1000 program was established to ensure that the surface finishing industry would have resources to effectively address regulatory, legislative and legal actions impacting the industry, NASF members and their workplaces. All funds from the NASF 1000 program are used exclusively to support specific projects and initiatives that fall outside the association’s day-to-day public policy activities.
The commitment to this program is one of the most vital contributions made in support of surface finishing and directly shapes the future of the industry. The sustained commitment from industry leaders has helped the NASF remain strong and credible in informing regulatory decisions across the nation.
Specific projects funded through the NASF 1000 make a measurable difference in how the industry navigates emerging challenges, communicates credibly with policy makers, and advocates for a strong science base for rules or standards that affect surface finishing.
Please consider supporting the NASF 1000 program.
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If you have any questions or would like additional information on this or membership matters, please contact Christian Richter at crichter@thepolicygroup.com, Jeff Hannapel with NASF at jhannapel@thepolicygroup.com.
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