ISSA Legislative & Regulatory Update August 2016

Hot News
ISSA Expresses Support for Overtime Reform Bill

National News
Wal-Mart Asks Suppliers to Remove Eight Chemicals
White House Reviewing EPA Degreaser Ban
EPA: Chemical Shouldn’t Be Regulated as Ozone Precursor
EPA Hosts Public Meeting on New TSCA Regulations
OSHA Interpretation Expands Recordable Injury Definition
Retailer Cuts Ties with Cleaning Service Provider
GSA to Launch Transactional Data Reporting Pilot
EPA’s Energy Star and SmartWay at ISSA/INTERCLEAN 2016
Get Out the Vote!

State Activity
California Adds 1-Bromopropane to Prop 65 List

International Activity
Canada Cancels Registrations of 25 Boric Acid Pesticides
EU Chemicals Agency Seeks Comments on Biocides

Safety and Health Corner
OSHA Wants to Hear How Employers are Keeping Workers Safe from the Heat

Hot News

ISSA Expresses Support for Overtime Reform Bill

ISSA expressed its strong support for the Overtime Reform and Enhancement Act (H.R. 5813), a bill that would alleviate some of the concerns employers have with the Department of Labor’s (DOL) revised overtime regulations.

The overtime rule, announced by DOL in May 2016, raises the threshold for employees who are exempt from overtime pay to $47,476 effective Dec. 1, 2016– more than double the current salary threshold of $23,660. While not opposed to a reasonable adjustment to the current overtime threshold, ISSA has expressed concern that the new rule would adversely affect many ISSA member companies, and could harm many affected employees as well.

H.R. 5813, introduced July 17 by Rep. Kurt Schrader (D-OR), would incrementally phase in the new salary threshold over the next three years to give businesses adequate time to adjust to the new standard while also ensuring workers are fairly compensated. The bill would also eliminate a provision in the final overtime rule that allows for automatic updates to the salary threshold every three years.

Schrader’s bill is widely viewed as a reasonable compromise that can win bipartisan support and ISSA letter of support for the bill to Congressman Schrader’s office.

According to ISSA director of legislative and environmental services, Bill Balek, Rep. Schrader’s Overtime Reform and Enhancement Act “provides a much more reasonable timeline for organizations to comply with this significant payroll burden, starting with a salary threshold increase to approximately $35,984 on Dec. 1, 2016, with additional, incremental increases phased in over the next three years.”

ISSA also supports eliminating the automatic updates to the salary threshold in the DOL’s overtime rule.  ISSA believes any proposed increase to the salary threshold should be subject to public notice and comment periods consistent with the rulemaking process.

Webinar—Oct. 11, 2016—Save the Date!  ISSA will conduct a webinar on Oct. 11, 2016 at 11 a.m. Central that will summarize the major revisions to the federal overtime regulations and provide recommendations on how best to comply with the soon to be implemented changes.  The program will be available to ISSA members for $99/person.  Registration will soon open for this webinar.

 

Wal-Mart Asks Suppliers to Remove Eight Chemicals

Wal-Mart Stores Inc. is asking suppliers to remove formaldehyde, triclosan and six other substances from their products, as part of an effort to eliminate controversial chemicals from household goods.

The chemicals on the list have “certain properties that can affect human health or the environment,” Wal-Mart said in a statement released on July 20. The retailer created the list with help from the Environmental Defense Fund, aiming to get suppliers to find alternatives, said Zach Freeze, Wal-Mart’s director for strategic initiatives related to sustainability.  The list was limited to eight high-priority chemicals so that Wal-Mart could make meaningful progress.

Naming the chemicals follows Wal-Mart’s announcement in 2013 that it would ask suppliers to reduce some substances in personal-care, cleaning and beauty products and promote alternatives. At the time, it didn’t get specific about the list. The program is an example of widening scrutiny by merchants, manufacturers and legislators into the effect of chemicals, as well as a nod to heightened consumer concerns.

Labeling Requirement.  Under the Wal-Mart policy, manufacturers must list the targeted ingredients on packaging by 2018 and work to find alternatives. The program affects about 90,000 items made by 700 manufacturers. Already, Wal-Mart’s suppliers have removed 95 percent of the chemicals on the list, by volume weight, from products sold in U.S. stores that are covered by the policy.

Formaldehyde is a carcinogen found in resins for wood products, building materials, paints and some consumer products like cosmetics, and triclosan is a chemical used in antibacterial soaps, toothpaste and some cosmetics.

The chemicals on Wal-Mart’s list also include:

• Toluene, a colorless liquid that is used in paint thinners, nail polish and fragrances;
• Diethyl phthalate, used to make plastic more flexible and in cosmetics, insecticides and aspirin;
• Nonylphenol exthoxylates, which are surfactants used in industrial applications and consumer products such as laundry detergent;
• Butylparabens, used as a preservative in cosmetics;
• Dibutyl Phthalate, a solvent; and
• Propylparaben, another preservative

The Environmental Defense Fund advised the retailer to identify chemicals that “the science was solid on” and were likely to be regulated.

Sustainability Initiative.  The chemical program is part of a broader sustainability initiative the Bentonville, Arkansas-based company started in 2005. The idea is to ultimately create zero waste, use only renewable energy, and sell products that are safe for people and the environment. But retailers also are responding to heightened consumer awareness of product ingredients and a growing preference for organic goods.

 

White House Reviewing EPA Degreaser Ban

The U.S. Environmental Protection Agency has sent a proposed ban on a widely used degreasing chemical to the White House for final review, indicating that the measure is close to being unveiled to the public.

The proposal would enact sweeping new restrictions on use of the chemical trichloroethylene, or TCE, a substance used to remove grease in metalworking, dry cleaning and other industries. It was sent to the White House’s Office of Management and Budget July 27 for final review.

Partial or Full Ban?  The details of EPA’s proposed action on TCE won’t become public until after the White House completes its review.  It is unclear whether the agency will propose a partial ban, aimed at preventing workplace exposure to the chemical, or a full ban.

After the agency formally introduces its proposal for TCE, it will hold a public comment period before finalizing any action.

According to information on OMB’s website, the EPA plans to use Section 6 of the Toxic Substances Control Act as its authority in promulgating the ban.  

 

EPA: Chemical Shouldn’t Be Regulated as Ozone Precursor

A chemical used for cleaning medical devices and electric components should no longer be regulated as a volatile organic compound under the Clean Air Act, according to the Environmental Protection Agency.

The agency, in a direct final rule published in the Aug. 1 Federal Register, said 1,1,2,2-Tetrafluoro-1-(2,2,2-trifluoroethoxy) ethane can be exempted from the definition of volatile organic compound because it makes a “negligible contribution” to the formation of ground-level ozone. The chemical, also known as HFE-347pcf2, is used as a precision cleaning agent that is used to remove oil and contaminants from a variety of items, including jewelry, film and aircraft guidance systems.

The action was initiated by a manufacturer that petitioned EPA in 2007 to exempt the chemical from the regulatory definition of volatile organic compound. Volatile organic compounds, commonly known as VOCs, are one of the precursors to ozone formation.

If HFE-347pcf2 were no longer considered to be a volatile organic compound, any entity that uses or produces the chemical would no longer need to count the chemical for the purposes of determining compliance with EPA regulations aimed at controlling VOC emissions.

The EPA said it views its decision as a noncontroversial action and anticipates no objections. The EPA will open a 30-day public comment period on the direct final rule, which can be submitted at http://www.regulations.gov under Docket No. EPA-HQ-OAR-2015-0041.

If no adverse comments are received, the rule will go into effect 30 days later. If adverse comment is received, the agency will proceed with a notice-and-comment rulemaking.

 

EPA Hosts Public Meeting on New TSCA Regulations

The U.S. Environmental Protection Agency (EPA) conducted a public meeting on Aug. 9 to engage stakeholders in a discussion regarding regulations the Agency must develop and issue in order to implement the Toxic Substances Control Act (TSCA) as amended on June 22 by the Frank R. Lautenberg Chemical Safety for the 21st Century Act (Lautenberg Act). 

At that meeting various industry representatives encouraged EPA to assist the marketplace by identifying chemicals and chemical uses that pose little or no risks as well as those that do. More specifically, industry urged EPA to establish rules and procedures designed to evaluate chemical risks that also require it to identify low-risk uses of a chemical even if there are particular uses that would pose health or ecological risks.

Industry representatives were among the more than 660 people from trade associations, consulting companies, California’s EPA, the AFL-CIO, animal welfare groups, environmental health organizations and academics who registered to attend or listen to a public meeting the organized by EPA to begin the process of developing rules and regulations that will implement the Lautenberg Act.

The rule, which must be issued as final by June 22, 2017, would describe the process the agency will use to evaluate the risks of high priority chemicals.  The rule also will describe the process the agency will use to evaluate the risks of chemicals that manufacturers nominate for agency review. Companies are responsible for paying some or all of these manufacturer-initiated risk evaluations.

Rule Must Define Statutory Terms.  One of the more challenging subjects EPA must address in the rulemaking is defining the range of chemical information that would be required by the rule that the EPA plans to propose by the end of December.  This definition alone will define the scope of information manufacturers and others may need to provide EPA. 

In addition, the regulation must define other key statutory terms in ways that all interested parties understand what the agency means by words and phrases such as “best available science” and “weight of the evidence,” key terms used in the Lautenberg Act.  The rule ultimately issued by EPA should make clear how the EPA will carry out, or how manufacturers that choose to submit risk evaluations should carry out, the problem formulation and scoping stages of a risk evaluation.

Industry insiders called for transparency, and that it should be clear from the face of the regulation how specifically EPA will evaluate data quality.  The clearer the EPA can be in how it defines these terms, the better the data it will get, the more consistent its risk assessments will be and the easier it will be for the agency to meet the law’s chemical risk evaluation deadlines.

First Decisions on New Chemicals Made Under Amended TSCA.  In related news, EPA issued its first regulatory decisions July 22 for new chemicals using the criteria of the Lautenberg Act.  Specifically, the EPA concluded chemical manufacturers may make or import four new chemicals, because none is “likely to present an unreasonable risk.”

The four chemicals, identified by generic names, will be used in lubricants, added to plastics and used to make other chemicals including polymers.

Prior to the Lautenberg Act, a new chemical—one that had never been made or sold in the U.S. before—could simply enter U.S. commerce after 90 days unless the EPA raised objections.

Information about the chemical, the rationale that prompted the agency to raise objections or not, and details on controls it may or may not have requested a manufacturer to take were, typically, a “black box”.  Now the agency must review all new chemicals and make a specific decision about whether they would pose an unreasonable risk.

The agency may, as it did with these four chemicals, decide a chemical is not likely to present an unreasonable risk. It also could conclude the chemical may pose an unreasonable risk warranting some type of restrictions or controls.  EPA also could conclude it has insufficient data to make a conclusion and order the manufacturer to submit additional information on toxicity or exposure.

The reasoning behind the agency’s decision must be made public under the Lautenberg Act.

A new EPA webpage contains its new chemical decisions, called “determinations,” and provides links to documents that provide more detail for each chemical reviewed.  The information EPA posted contains an unprecedented amount of transparency about the reasons the agency reached its decisions and the methods it used to make them.

 

OSHA Interpretation Expands Recordable Injury Definition

New federal guidance expands the type of medical care triggering the mandate for employers to record injuries in OSHA logs. The letter of interpretation was published online Aug. 1 by the Occupational Safety and Health Administration (OSHA).

The letter says if an employee decides without first consulting a medical professional to treat wrist pain with a rigid brace, using the brace elevates the injury to becoming a recordable injury even if a doctor later says the brace isn’t necessary.

Doctor’s Approval.  The heart of the question posed to OSHA wasn’t the use of the rigid brace, but rather whether a medical professional’s approval for the brace was needed for the brace to trigger the recording requirement.

According to OSHA, a provision of the agency’s recordkeeping rule, 29 C.F.R. 1904.7(b)(5)(ii)(F), declares that the use of orthopedic devices designed to immobilize parts of the body, such as wrist braces with rigid stays, is considered medical treatment beyond first aid.

However, OSHA also says that for treatment beyond first aid to qualify as recordable it must be “directed or recommended” by the employer or a medical professional.

In this case, when the worker visited an occupational health clinic, arranged for by the employer, the doctor said the brace wasn’t necessary. The doctor also said that if the worker felt he was getting pain relief from the brace, he should continue to wear it.

Unsure what OSHA’s opinion would be on listing the injury in logs employers are required to keep, the employer’s consultant contacted two OSHA regional offices last year. Both stated that the injury wasn’t recordable.

In addition, the employer’s consultant also requested a letter of interpretation from OSHA headquarters in November 2015. The agency responded six months later with an April 14 letter, saying the injury must be recorded.

 

Retailer Cuts Ties with Cleaning Service Provider

A retail store based on the east coast is investigating allegations that subcontracted janitors were required to transport in their personal vehicles 20-pound propane tanks used to operate buffing machines.

The retailer recently cut ties with cleaning contractors in Connecticut after similar employee complaints cropped up and state labor officials issued stop-work orders.

In a letter  directed to the retailer, the cleaning service employees and their supporters alleged that managers for three different cleaning contractors required them to use potentially dangerous solvents and strippers without proper training or protective equipment.

“Many suffer headaches, nausea and disorientation from these noxious chemicals,” the letter stated, noting that the cleaners have filed a complaint against the contractors with the Labor Department’s Occupational Safety and Health Administration’s regional office in Boston.

The workers are not represented by a union for collective bargaining purposes. But one of their key supporters is Local 32BJ of the Service Employees International Union, which is helping the janitors organize.

Review of Employee Allegations.  The retailer launched a review of the allegations involving its third-party cleaning service providers and  has promised to “take all appropriate steps to resolve any potential issues that are found.”

In a complaint sent July 11 to OSHA’s regional office in Boston, the Industry Cooperation Trust Fund, New England, said that in the past four months it conducted field investigations at 78 locations of the retailer’s stores in the Boston metropolitan area. The investigations involved contacting 66 subcontracted janitors employed by various companies that have contracts with the primary cleaning contractors to provide janitorial services.

The Industry Cooperation Trust Fund is a joint labor-management fund operated by Local 32BJ and maintenance contractors in New England.  The ICTF is an industry watchdog organization whose mission is to investigate illegal practices in the janitorial industry and support workers when they file complaints.

Health and Safety Concerns.  “Cleaners reported that they are not provided with safety gear, such as gloves or glasses,” the complaint involving subcontracted janitors stated. They also alleged that they haven’t been properly trained to handle the propane tanks they said managers require them to keep in their vehicles, it added.

Cleaning service employees had requested an assigned place to store their propane tanks at the retailer’s facility where they work, the complaint states.  However, their employer consistently responded that the retailer said “it’s too dangerous to leave the tank in the store, ” it said. “Some cleaners reported that they hide the propane tank behind the building in some cases with the knowledge of their supervisor.”

 

GSA to Launch Transactional Data Reporting Pilot

The General Services Administration (GSA) is amending the General Services Administration Acquisition Regulation (GSAR) to include clauses that require vendors to report transactional data from orders placed against certain Federal Supply Schedule (FSS) contracts, Governmentwide Acquisition Contracts (GWACs), and Governmentwide Indefinite-Delivery, Indefinite-Quantity (IDIQ) contracts.

Transactional data refers to the information generated when the Government purchases goods or services from a vendor.  It includes specific details such as descriptions, part numbers, quantities, and prices paid for the items purchased. GSA has experimented with collecting transactional data through some of its contracts and found it instrumental for improving competition, lowering pricing, and increasing transparency.  

Accordingly, GSA will now test these principles on a broader base of its contracting programs. This move supports the Government’s shift towards category management by allowing it to centrally analyze what it buys and how much it pays, and thereby identify the most efficient solutions, channels, and sources to meet its mission critical needs.

GSA will introduce a new Transactional Data Reporting clause to its FSS contracts in phases, beginning with a pilot for select Schedules and Special Item Numbers.  Likewise, the agency will introduce the transactional data reporting requirement with a pilot of select products and services in the MAS program. This pilot will be introduced in a phased approach beginning in August 2016.

The primary goal of the Transactional Data Reporting is to provide GSA with business intelligence that will strengthen its ability to make “best value” decisions, and ultimately drive prices paid to vendors even lower. 

Related News.  The Department of Defense, GSA, and NASA are proposing to amend the Federal Acquisition Regulation (FAR) to implement a section of the Carl Levin and Howard P. “Buck” McKeon National Defense Authorization Act for Fiscal Year 2015 (“Act”) that provides that the contract file shall contain certain documentation if the Federal Government makes a purchase of supplies and services offered under the Federal Strategic Sourcing Initiative (FSSI), but the FSSI is not used.

Section 836 of the Act establishes that when the Federal Government makes a purchase of supplies or services offered under the Federal Strategic Sourcing Initiative (FSSI), but the FSSI is not used, the contract file for the purchase shall include a brief analysis of the comparative value, including price and nonprice factors, between the supplies and services offered under the FSSI and those offered under the source(s) to be used for the purchase. 

 

EPA’s Energy Star and SmartWay at ISSA/INTERCLEAN 2016

Two of EPA’s premier programs, Energy Star and SmartWay, will be present at Booth 1475 at ISSA/INTERCLEAN 2016 at McCormick Place South, Chicago, IL.

ISSA members are encouraged to visit Booth 1475 and use the opportunity to become familiar with the tools and resources that are now available at no cost by virtue of ISSA’s affiliation with both Energy Star and SmartWay.

Energy Star is a U.S. EPA voluntary program that helps businesses and individuals save money and protect our climate through superior energy efficiency.

Energy Star has a wide variety of resources available to ISSA members such as its popular Portfolio Manager that helps facilities manage energy, water and waste all in one secure online environment.

EPA’s SmartWay program helps companies save money by improving supply chain sustainability through a combination of measuring, benchmarking and freight transportation efficiency that results in reduced emissions and fuel consumption.

Stop by Booth 1475 at ISSA/INTERCLEAN and learn more about these valuable programs!

 

Get Out the Vote!

Data compiled by the U.S. Census Bureau after each Federal election consistently shows that millions of registered voters who work in the private sector fail to cast ballots in elections for high public office at all levels of government.  For example, in 2014, 28% of registered non-voters said they failed to vote because they were “too busy.”  An additional 10% said they were out of town.  In light of the close political division that is apparent across the country today, and the narrow margins in many campaigns for President, governorships, the U.S. Senate and House of Representatives on down, it is apparent that had these millions of votes been cast, electoral outcomes could have – and in many cases would have – been quite different.

Tuesday, November 8th – Election Day.  With control of both the White House and the legislative branch of the Federal Government so clearly in play and up-for-grabs between pro-business and anti-business forces, the outcome of this election has tremendous implications for employers and for the economy as a whole.

It is vital that ISSA members and their supply chain partners vote.  In view of the effect government policy can have on your company and the way you manage it, it is simply a bad idea from a business perspective to leave any portion of the political power of our industry on the sidelines in any election. 

And in this particularly tumultuous election year, it is critical that we don’t focus exclusively on the Presidential race – in many cases, voting in down-ballot races for the U.S. Senate and U.S. House of Representatives will be even more important than a vote for the top of the ticket.

To register to vote, learn about early voting procedures in your state, and to obtain an absentee ballot, please go to:

http://www.naw.org/govrelations/vote.php

Finally, please encourage your management team to register, to familiarize themselves with early and absentee voting procedures, and to vote.  Share this message with your key executives and managers, please.

 

State Activity

California Adds 1-Bromopropane to Prop 65 List

Effective August 5, 2016, the Office of Environmental Health Hazard Assessment (OEHHA) has added 1-bromopropane (CAS No. 106-94-5) to the list of chemicals known to the state to cause cancer for purposes of Proposition 65.  

1-Bromorpropane is a solvent that is used in degreasing, dry cleaning, spray adhesives, and aerosol solvents.

The listing of 1-bromopropane is based on formal identification by the National Toxicology Program (NTP), an authoritative body, that the chemical causes cancer.  The placement of 1-bromopropane triggers a duty to provide a “reasonable warning” consistent with the requirements of California’s Prop 65.  Manufacturers have one year from the date the chemical was added to the Prop 65 list to comply with the warning requirement. 

A complete, updated Prop 65 list of chemicals is posted online at:

http://oehha.ca.gov/proposition-65/proposition-65-list  

 

International Activity

Canada Cancels Registrations of 25 Boric Acid Pesticides

Canada is taking action to regulate industrial uses of boric acid by canceling the registrations of 25 boric acid-based pesticides, and eliminating some approved uses of other pesticides.

The Canadian government also is proposing to designate boric acid as toxic and is considering regulating its use by the metal mining, chemicals, oil and gas, consumer products and other sectors.

Health Canada’s Pest Management Regulatory Agency announced July 23 that based on its re-evaluation of the risks, it will no longer permit the use of the 25 boric acid-based products. In addition, some uses of the remaining 86 boric acid-based pesticides will no longer be permitted.

“Even natural ingredients like boric acid can pose a risk to Canadians,” Health Minister Jane Philpott said in a July 22 statement.

Boric acid-based pesticides are used to control a range of insects and fungi in buildings, wood and wood products, and alternatives are readily available, the agency said. The canceled uses include application of commercial dust or soluble powder products to poultry houses and barns; paintbrush application of commercial solution and soluble powder products; and residential use of dust and granular formulation products, as well as solutions not in enclosed bait stations.

With registrations canceled, retail sales are not permitted after July 22, 2018, and they are no longer permitted for use after the registrations expire July 22, 2019.

Labeling Requirements.  Health Canada said it also will impose more stringent labeling requirements for all other registered boric acid-based pesticides to minimize the risks they pose to Canadians’ health. Those requirements, including for enclosed bait stations and spot treatments with much lower levels of exposure, must be met no later than July 22, 2018.

The revised label requirements include directions to specify that boron products can be used only in areas that are inaccessible to children and pets.

The registrations of some other alternative insecticides used for structural treatment, such as bendiocarb, chlorpyrifos and diazinon, or restricted, such as dichlorvos and propetamphos, also have been canceled, it said. Silicon dioxide is the only alternative active ingredient currently registered for a similar range of pests and uses as boron.

Boric Acid Proposed as Toxic.  Meanwhile, Environment and Climate Change Canada and Health Canada proposed July 23 designating boric acid, its salts and precursors toxic and outlined proposed regulatory and other actions to limit the human health risks of exposure to boron-containing compounds.

The proposed designation is based on a draft environmental assessment of 14 boric acid-based substances that found they pose a risk to the environment and human health, the departments said in a notice in the July 23 Canada Gazette, Part I.

The notice is open to public comment through Sept. 21.

 

EU Chemicals Agency Seeks Comments on Biocides

The European Chemicals Agency (ECHA) called for information July 15 on eight chemicals used in rat poisons and other pest-control products as part of an exercise to determine if the substances can be exempted from a general ban under the European Union’s Biocidal Products Regulation (BPR, (EU) No 528/2012).

The call for information, which is open through Sept. 12, concerns chlorophacinone, coumatetralyl, warfarin, bromadiolone, difenacoum, brodifacoum, difethialone and flocoumafen.

The BPR forbids the authorization in the EU of biocidal substances if they have been classified as carcinogenic, mutagenic and reprotoxic (CMR), are endocrine disruptors, or if they present other hazards listed in the regulation’s Article 5(1).

However, hazardous substances can be authorized if they present negligible risks to users, are considered essential or if their phaseout would be disproportionately expensive.

ECHA said that it aimed through the consultation to “gather information to see if any of the derogation criteria are met.”

Under the BPR, active substances used in biocides must be approved at the EU level. Companies can then seek authorizations for biocidal products containing the substances from ECHA or from authorities in EU countries.

 

Safety and Health Corner

OSHA Wants to Hear How Employers are Keeping Workers Safe from the Heat

In recent weeks, millions of American workers have been exposed to extreme temperatures across the country. During a heat wave, employers should plan additional precautions to reduce the risks of heat exposure. Those steps include gradually exposing workers to hot environments, providing frequent water breaks, allowing ample time to rest, and providing shade.

On June 27, OSHA Assistant Secretary Dr. David Michaels hosted a conference call featuring several employers and employer groups that are making noteworthy efforts to protect workers. These efforts include holding heat-safety stand-downs, and providing additional protections such as cooling vests and shade canopies.

OSHA wants to hear how employers and safety professionals are keeping workers safe from extreme heat.  Post your photos to Twitter using #WaterRestShade or email stories to [email protected] for possible inclusion in a future issue of  OSHA’s electronic periodical, QuickTakes.