Monday, June 17, 2019

CFATS Reauthorization Bill Introduced in the House


On June 13, legislation that would reauthorize the Chemical Facility Anti-Terrorism Standards (CFATS) program for an additional five years was introduced in the U.S. House of Representatives. The bill, H.R.3256, introduced by Rep. Cedric Richmond (D-LA 2nd District) , would extend CFATS until May 1, 2025. The bill also provides a number of amendments to the current authorization language.

The House Committee on Homeland Security will hold a hearing on the bill on June 19. Separately, on June 4, the U.S. Senate Committee on Homeland Security held a hearing, “Sensibly Reforming the Chemical Facility Anti-Terrorism Standards Program.”

The U.S. Department of Homeland Security implements the CFATS program under a variety of short-term authorizations by Congress. On Jan. 18, 2019, President Trump signed into law H.R. 251, the Chemical Facilities Anti-Terrorism Standards (CFATS) Program Extension Act. This law reauthorized for 15 months the CFATS program, which was set to lapse on Jan. 19, 2019.

Under CFATS, chemical facilities possessing more than a threshold amount of specific explosive, toxic, or other “chemicals of interest” determined by DHS, are required to complete a “top-screen,” notifying DHS that they possess such chemicals on site. Once a facility submits its top-screen, DHS can direct the facility to submit a Security Vulnerability Assessment (SVA). The SVA provides the basis for DHS to assign the facility to one of four tiers: Tiers 1 and 2 being the highest risk, and Tiers 3 and 4 being the lowest. Tier assignment triggers a requirement to submit a Site Security Plan (SSP) or an Alternative Security Plan (ASP) to DHS for authorization and approval.

ACA has long been a proponent of long-term authorization for CFATS, a critical program aimed at preventing chemicals from being stolen, diverted, sabotaged, or deliberately released by terrorists or other bad actors. ACA has repeatedly urged Congress to act swiftly to provide for a multi-year authorization of the program, which covers approximately 3,400 chemical facilities assessed to present a risk of terrorist attack or exploitation.

ACA considers CFATS a necessary regulatory scheme to help industry and communities be safer and more secure. ACA is eager to work with Congress and DHS as it considers improvements to the program, which would give industry regulatory certainty and stability to make prudent risk management decisions and investments.

While supporting the CFATS program, ACA has sought updates to the program to implement and improve chemical security. ACA submitted recommendations to Congress for CFATS enhancements compiled from ACA’s member companies, who own and operate paint, coatings, resin, or chemical manufacturing facilities. Some of these facilities are subject to CFATS, with the majority classified as Tier 4 facilities, while just a few are Tier 3.

Specifically, ACA has sought the following:

  • Greater transparency for CFATS tiering determinations and security plan review;
  • Focus on risk-based determinations for personnel surety requirements;
  • Regular review of the “chemicals of interest” list; and
  • Improved coordination for CFATS with other federal chemical security and safety regulatory programs.

ACA supports the safe handling and use of chemicals, and the structure which CFATS provides to enable that in practice. ACA is also a longstanding member of the Chemical Sector Coordinating Council (CSCC). Organized by DHS, the CSCC expands communication between industry and DHS. Through the CSCC, ACA has advised DHS on how it might develop more effective solutions to implement and improve chemical security.

Contact ACA’s Rhett Cash for more information.

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ACA to Comment on EPA’s Priority Chemicals for TSCA Risk Evaluation


On June 19, ACA will submit comments to the U.S. Environmental Protection Agency (EPA) on the agency’s 20 high priority candidates for chemical risk evaluations as required by the amended Toxic Substances Control Act (TSCA).

Under the law, EPA is required to finalize prioritization by December 2019.  EPA can extend prioritization by 3 months if necessary.  Upon completion, EPA will begin its 3- 3 ½ year risk evaluation process.

Amended TSCA requires EPA conduct risk evaluations of at least 20 chemicals at any given time, from chemicals it has designated as “high priority.” EPA must use the risk evaluation process to “determine whether a chemical substance presents an unreasonable risk of injury to health or the environment without consideration of costs or other non-risk factors, including an unreasonable risk to a potentially exposed or susceptible subpopulation identified as relevant to the risk evaluation by the Administrator under the conditions of use.” EPA published its final risk evaluation rule on July 20, 2017. EPA will use the prioritization process to consider data availability, uses of candidates and risk evaluation methods to inform scoping early in the risk evaluation process.

The following provides a summary of ACA’s comments.

Conditions of Use

In its comments, ACA expresses general support for EPA’s reasoned evaluation and exclusion of conditions of use from risk evaluation for the following reasons (as stated in EPA’s problem formulations for the first 10 TSCA evaluations):

  • Insufficient information to include an activity as a condition of use in a risk evaluation;
  • The condition of use is adequately controlled by other federal regulatory programs and therefore excluded from final risk evaluation; and
  • The condition of use does not require further analysis, but EPA will include it in the final risk evaluation based on existing information.

ACA notes that while in the first 10 risk evaluations, EPA carefully described reasons for excluding conditions of use, ACA is concerned that a situation could arise where EPA excludes a condition of use in a manner that prevents EPA’s risk evaluation from being comprehensive while limiting federal pre-emption. TSCA establishes pre-emption of state laws in Section 18(a)(1)(B).  States cannot establish a statute, criminal penalty or administrative action restricting a use subject to an EPA final determination (under Section 6(i)(1)), where that final determination is consistent with the scope of a risk evaluation conducted according to Section 6(b)(4)(D).

ACA is concerned that conditions of use relevant to the paint, coatings, sealants and adhesives industries, in future risk evaluations, will not be included in EPA’s final risk evaluation. In effect, TSCA’s pre-emption of state activities may not apply to such conditions of use, opening the door for a patchwork of state-level requirements. In certain instances, ACA would recommend that the Agency acknowledge uses that do not merit an unreasonable risk determination and include analysis supporting such a determination in a final risk evaluation. ACA recognizes that such an analysis would have to be made on a case-by-case basis.

ACA is urging EPA to describe its rationale for concluding the use poses no unreasonable risk. Such an approach might be appropriate where comprehensive mitigation of a risk factor by a federal program is uncertain or not universally accepted.

De Minimus Exposures and Final Risk Evaluations

Generally, ACA supports EPA’s exclusion for de minimis exposures in the current group of evaluations. For example, in its Problem Formulation for Carbon Tetrachloride, EPA excludes “industrial / commercial / consumer uses of carbon tetrachloride in commercially available aerosol and non-aerosol adhesives / sealants, paints / coatings and cleaning / degreasing solvent products” as a “conditions of use with de minimis exposure.”1  EPA demonstrates that carbon tetrachloride is sufficiently restricted by other regulatory programs and is not a direct reactant or additive for the identified condition of use.

ACA notes that there may be a situation where EPA could include de minimis exposures in a final risk evaluation, if only to document and integrate evidence of de minimis exposures to support a conclusion of no unreasonable risk. Such an analysis would promote comprehensive review while preserving pre-emptive effect of EPA’s evaluation for the condition of use, rather than exclusion for de minimis exposures.

ACA’s comments will also address specific risk evaluations for chemicals in paints, coatings, sealants and adhesives to support EPA in identifying accurate uses, exposures and environmental releases.

Contact ACA’s Riaz Zaman for more information.

1 Problem Formulation of the Risk Evaluation for Carbon Tetrachloride EPA Document No. EPA-740-R1-7020, p. 20 (May 2018).

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Washington State Enacts Sweeping Green Chemistry Law 


Last month, Washington Gov. Jay Inslee signed into law one of the most restrictive comprehensive and toxic substances and pollution control legislation in the United States. The law (SS Bill 5135) will require the state’s Department of Ecology (DOE) to identify and develop restrictions or ban certain hazardous substances in consumer products and packaging sold for residential or commercial use.

DOE, by June 1, 2022, must develop priority chemical regulations, that will be implemented by June 1, 2023.  Every five years, the department must designate a minimum of five additional priority chemicals or chemical classes.

Among the many considerations in prioritizing a chemical — or a class of compounds — are its hazardous properties, persistence in the environment, and bio-accumulation in people or sensitive species such as orca.

Notably, Polychlorinated Biphenyls (PCBs) are listed as one of the first priority chemicals and will likely be subject to additional regulatory actions in the future. DOE staff will likely focus specifically on product swap out/remediation of caulks and paints and other PCB containing products, as well as extensive product testing for the state (testing associated with implementation of the PCB-free product referable purchasing initiative, addressed further in this article).

“Legacy” and Inadvertent PCBs

PCBs are chlorinated compounds found in the environment in either one of two ways. First, there are “legacy” PCBs, which were manufactured from the 1920s until the 1970s, which were used primarily in electrical equipment including (but not limited to) transformers, capacitors and ballasts. Notably, PCB manufacturing was banned under the Toxic Substances Control Act (TSCA) in 1979.

The other type of PCBs are inadvertent PCBs, which exist as byproducts at very low concentrations in some raw materials that are currently used in coatings and adhesive manufacturing. Inadvertent PCBs may be found in certain chlorinated color pigments, such as diarylide yellows; azo orange and reds; phthalocyanine blues and greens. TSCA regulations require inadvertent PCB concentrations in pigments to be less than 50 pounds per million (ppm) maximum, and an average of 25 ppm. Recent testing suggests that inadvertent PCBs in coatings and adhesives may be found at levels in the part per billion concentration levels.

PCB Regulation in Washington State

In 2014, to address PCBs in aquatic environments, the State of Washington passed a law requiring state agencies to purchase products that don’t contain PCBs, where feasible. In 2015, the Washington Department of Ecology (DOE) finalized a chemical action plan for PCBs that recommended the testing of products, promoting the use of processes that don’t inadvertently generate PCBs, and the completion of alternative assessment for pigments. It is important to note that the chemical action plan described inadvertent PCBs in pigments as a very small source — less than 1 percent contribution to the overall problem.

The Washington State Department of Enterprise Services (DES) has been tasked with the implementation of the 2014 Preferable Purchasing Law requirements and is likely to release policies in the next few months, as well as a training program for other state agencies focusing on this policy. The State of Washington and several local jurisdictions have included PCB restrictions and/or preferable purchasing credits in recent yellow road-marking paint bid documents. In addition, Washington DOE has included language in wastewater discharge permits limiting the use of coatings, caulks, and sealants containing PCBs.

The City of Spokane has conducted PCB testing on many products that are typically purchased by municipalities (i.e., traffic marking paints, hydrant and utility locate paints). DOE has conducted separate testing of many consumer products including caulks, paints, colorants, and road paints and posted the results in a searchable database. Additional testing is ongoing, including specific testing related to titanium dioxide. The results will likely be released in early 2019.

Further Water-related PCB Activity in Washington

On March 14, 2018, Washington Gov. Jay Inslee signed Executive Order 18-02: Southern Resident Killer Whale Recovery and Task Force. Through this executive order, the governor directed state agencies to implement nine immediate actions to benefit Southern Resident orca whales, including the development of a Task Force. On Sept. 24, 2018, the Southern Resident Orca Task Force published draft recommendations, including accelerating the implementation of the 2014 PCB purchasing law “to reduce the PCBs entering the Puget Sound from products such as paints, hatchery fish feed, adhesives, electrical equipment, caulking, paper products and lubricants. Product suppliers to the state will provide information about PCBs in their products, and this information can be shared with other purchasers that want to avoid products containing PCBs.”

In addition to the Southern Resident Killer Whale Recovery and Task Force, there is also the Spokane River Regional Toxics Taskforce, which is developing a comprehensive plan to bring the Spokane River into compliance with very stringent water quality standards for PCBs. This group recently developed a report “Inadvertent PCBs in Pigments” what calls for multi-stakeholder collaborations; green chemistry and engineering research; alternatives assessment; and procurement policies to drive the substitution of safer alternatives. In addition, this group is currently conducting a literature review and whitepaper on the generation of inadvertent PCBs in the production of titanium dioxide.

Contact ACA’s David Darling or Raleigh Davis for more information.

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New York PaintCare Bill Passed by State Senate


On June 5, New York State unanimously approved legislation that would establish the PaintCare program in that state, if enacted. The Senate bill, S4351, sponsored by Sen. Tom O’Mara (R,C,I-Big Flats), would mandate the industry-sponsored paint stewardship program and reduce a costly burden on local governments that are currently responsible for collecting and disposing of most post-consumer, unused paint.

In New York, the legislation has received strong support on the Senate side over the past four years; but a companion bill in the Assembly, A. 6373, sponsored by Assemblyman Steve Englebright (D-4th District) has not fared as well. That bill is currently awaiting action by the Assembly’s Environmental Conservation Committee, and on June 6 was referred to the Assembly’s Ways and Means Committee.

Since 2008, Oregon, California, Connecticut, Rhode Island, Vermont, Minnesota, Maine, Colorado, and the District of Columbia, have implemented the ACA- and industry-conceived platform for the proper and effective management of post-consumer paint. Just last month, Washington state enacted legislation that will bring the PaintCare program to the state in 2020.

O’Mara, a member of the Senate Environmental Conservation Committee, has said that the legislation would create local jobs, provide relief to local property taxpayers, and encourage environmentally sound recycling and disposal of unused paint in New York State. He pointed to the initiative as an example of how government and industry can work together to implement effective environmental policies and programs.

The Product Stewardship Institute  has estimated that approximately 3.1 million gallons of paint go unused each year in New York State — with the costs of collecting and managing the paint’s disposal mostly falling on local governments.

ACA and its industry are committed to finding a viable solution to the issue of post-consumer paint, which is often the number one product, by volume and cost, coming into Hazardous Household Waste (HHW) programs. PaintCare has had resounding success in the eight states in which program operations have been implemented. To date, the program has collected some 35 million gallons of paint.

The program’s success has been so widespread that many state officials and local governments dealing with leftover paint are interested in bringing the program to their states. One of ACA’s goals is to make this legislation consistent across all states so that program implementation can truly be nationally coordinated and manufacturers and consumers of paint do not have differing programs across state lines.

ACA created PaintCare, a 501(c)(3) organization whose sole purpose is to ensure effective operation and efficient administration of paint product stewardship programs, on behalf of all architectural paint manufacturers in the United States. PaintCare undertakes the responsibility for ensuring an environmentally sound and cost-effective program by developing and implementing strategies to reduce the generation of post-consumer architectural paint; promoting the reuse of post-consumer architectural paint; and providing for the collection, transport, and processing of post-consumer architectural paint using the hierarchy of “reduce, reuse, recycle,” and proper disposal.

The funding for the program collected via an assessment fee will cover the cost of all paint — not just new pint sold, but all the legacy paint already in consumers’ basements and garages.

The assessment will also go toward consumer education and outreach for the program, as well as administrative costs. ACA believes that consumer education is paramount with this type of program, since paint is a consumable product. ACA maintains that manufacturers do not produce paint to be thrown away, but to be used up. In order to work toward a goal of post-consumer paint waste minimization, the consumer must be engaged. PaintCare’s educational program does not just focus on recycling and proper management of unwanted paint, but on buying the right amount of paint and taking advantage of reuse opportunities that can help reduce the generation of leftover paint in the first place.

To further ensure fairness and consumer protection, the bill specifies that the assessment funding the program must be approved by an independent audit submitted to the state Department of Environment and must be set at a rate to cover only the cost to manage and sustain the program.

ACA has worked with environmental advocacy organizations and municipal agencies that support the legislation.

Contact ACA’s Heidi McAuliffe for more information.

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World Class Production Managers

We recently sat down with three top production managers in the industry to get some insight about their roles and experience. In this webinar, Bill Curtindale of Skis Painting, Matt Orcino of SNL Painting and Bill Loepp of Shamrock Painting Inc. give us some top tips for hiring and training production managers.

Hiring Production Managers

When it’s time to hire a production/operations manager, take your time finding someone. Since they will be in a leadership position, they need to care about your company, motivate your employees and fit your overall culture.

Training Production Managers

Once a new production manager is in place, take the time to empower them in their new role. Watch them as they work to verify what they are doing fits in with your vision. In the beginning, you’ll have a lot of one-on-one sessions to train them and make sure they are working with the company values in mind. As time goes on, they will eventually become completely independent.

Supporting Production Managers

Providing support to your production/operations manager helps them excel in their role. With ongoing support and trust, they will have to confidence to provide new ideas to improve processes in your company.

Want to hear more? Check out the webinar to learn about the systems and solutions these top managers are using.

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Is What You Have What You Want

On this episode of PaintED, Jeff Prager from Cash Flow Engineering shares how being a million dollars upside-down in business helped shape his formula for determining direction in business management. It all comes down to a simple thumbs-up, thumbs-down approach. But in that deceptively simple decision is a procedure that takes into account the seven numbers you need to know in your business to get more of what you want, and less of what you don’t want. It’s actually a great mix of simple decisions built on processes and procedures designed to help you let the plan do its work so you can get more sleep at night.

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Becoming a Voice in the Industry

On this episode of PaintED, Chris Shank, the Education Director, and Heather Yocum, the Content Manager, of PDCA discuss ways people can become involved in amplifying PDCA’s voice in the industry. We are looking for business owners from residential, commercial and industrial segments of the industry to tell their stories and share their expertise with contractors all over the world. We can reshare your pictures and stories in the form of social media posts or blogs, or you can become a specialist on the Ask-A-Peer network to assist other contractors with their questions and projects, or you could be a guest on this very podcast! From something as simple as sharing a picture, to something as rewarding as submitting a Team Meeting outline or even volunteering on a leadership committee, we have ways for you to build on your pride and passion as a leader in the industry and connect with other people like you who will challenge you to get to the next level in your business.

Let us know you’re interested, and we’ll help you find your calling at the Painting Contractors Association. We’re pretty serious about this, and we’re good at it.

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