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By Pat Rizzuto
Aug. 23 — The Environmental Protection Agency should use the new authorities under the amended Toxic Substances Control Act to protect workers and other at-risk groups, advocates say.
Environmental health and union representatives urged the EPA to protect many potentially exposed and susceptible populations during meetings the EPA held Aug. 9 and 10 to discuss rules it must develop under the amended chemicals law.
Worker safety and protection from exposure to industrial chemicals on the job received particular attention at the meetings.
The TSCA amendments allow the EPA to consider several different risks posed by chemicals. Also, the Occupational Safety and Health Administration is underfunded, has proven unable to update chemical exposure limits for the workplace and implements a law that is older than TSCA before the chemicals law was finally overhauled, attorneys and other policy analysts told Bloomberg BNA in recent interviews. The individuals voicing these perspectives didn't always fall into expected camps.
“OSHA isn't doing it,” Eve Gartner, an attorney with Earthjustice told Bloomberg BNA. Gartner said that OSHA is simply not updating and setting new permissible exposure limits, or PELS, to limit worker exposures from harmful chemicals.
Anna Fendley, with the United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union, told Bloomberg BNA that TSCA's new mandate to consider workers as a potentially exposed group means the EPA could provide valuable additional expertise to support actions taken by OSHA and research at the National Institute for Occupational Safety and Health.
Jamie Conrad, an attorney with Conrad Law & Policy Counsel, told Bloomberg BNA that chemical risk assessments the EPA has conducted for trichloroethylene (TCE) in vapor degreasing, methylene chloride and n-methyl pyrollidone (NMP) in paint stripping prior to TSCA being amended already show the agency will consider workplace exposures as it decides whether to regulate chemicals in commerce.
The EPA has considered worker exposures in regulations of new chemicals in the past and will propose controls in a Federal Register notice slated for Aug. 24 publication.
W. Caffey Norman, an attorney and partner with Squire Patton Boggs, told Bloomberg BNA chemicals commonly used in the workplace may be in for new restrictions if the agency focuses on worker exposures.
TSCA, as amended June 22 by the Frank R. Lautenberg Chemical Safety for the 21st Century Act (Pub. Law No. 114-182), is “potentially a very powerful law,” Gartner told Bloomberg BNA Aug. 17. Section 3 of the law requires the EPA to protect “potentially exposed or susceptible subpopulations.” Lautenberg defined those terms as meaning groups within the general population that “due to either greater susceptibility or greater exposure, may be at greater risk than the general population of adverse health effects from exposure to a chemical substance or mixture, such as infants, children, pregnant women, workers, or the elderly.”
Both the new chemicals and existing chemicals sections of the amended TSCA (Sections 5 and 6) require the EPA—as it evaluates chemical risks—to look at its conditions of use throughout its life cycle, she said. The phrase life cycle includes its manufacture; “processing,” meaning its use to make paints, cleaning ingredients or other products; distribution in commerce; commercial or industrial use; and disposal, Gartner said.
If any of the exposures that occur during those stages, or if the combination of those exposures, present an unreasonable risk of injury to human health—including to potentially exposed or susceptible subpopulations—the amended law requires the EPA to issue a regulation to reduce or eliminate that risk, she said.
A new provision in Section 9 of the amended law also requires the EPA to take actions under a law administered by a different agency or through an environmental regulation other than TSCA.
EPA's chemicals office is required to provide a report about the unreasonable risk it found to the other agency or EPA office and publish the report in the Federal Register.
The EPA's chemicals office must ask the second agency or office whether it agrees there is a risk that should be addressed, and the chemicals office must set a response deadline.
If the second agency or EPA office fails to respond, fails to take action it says it will take to manage a risk with which it concurred, or fails to act in certain other ways detailed in Lautenberg, the EPA's chemicals office must take some kind of action to reduce or eliminate the identified unreasonable risk.
The EPA's implementation of the law is at an early stage, but the potential is exciting, Gartner said.
Rebecca Randle, of the AFL-CIO, urged the EPA to coordinate closely with the OSHA and NIOSH as the environmental agency selects which chemicals will be first in the queue to have their risks evaluated.
Gartner highlighted a new role workers, consumer advocates and other organizations could play once the EPA completes risk reviews.
As amended, TSCA now requires the EPA to issue the scope of its risk evaluation—the health concerns and exposures it will evaluate—within six months.
Workers, consumer groups and other interested parties should be at the table when the EPA is deciding what the scope of its risk evaluation will be, Gartner said.
The changes Lautenberg made to Section 9 also provide other options, she said.
Originally TSCA was designed to be used when other regulations didn't suffice, hence it was called a “gap filling statute,” she said.
“That has shifted a bit with the revisions of Section 9,” she said.
This poses strategic questions environmental health and worker groups will need to think through, she said. They can now ask “which agency is likely to do a better job” and which statute is best able to provide needed protections, Gartner said. “This opens doors that weren't open before.”
Fendley said the United Steelworkers are analyzing the TSCA amendments to determine where they would want workers' perspectives to be considered.
“This is a whole new world, we're looking forward to EPA working on chemicals,” she said.
Although one might expect a union to welcome new chemical regulatory activity because OSHA's PELS are somewhat out of date, Fendley said United Steelworkers doesn't want the EPA to supplant NIOSH and OSHA.
“We don't want EPA to replace OSHA in regulating chemicals in the workplace. That's not EPA's role; that's not its expertise,” she said. “The hope is that EPA will work closely with NIOSH and OSHA in assessing and controlling chemicals.”
EPA's risk assessments may provide useful information for OSHA and NIOSH as those agencies apply their expertise about workplace controls, Fendley said.
The views Gartner and Fendley shared with Bloomberg BNA were echoed by many advocates at meetings the EPA held on Aug. 9 and 10 to solicit interested parties' views about two draft rules the agency intends to propose by December. The first proposed rule would address how the EPA will decide which of the thousands of chemicals in commerce it should focus its attention on in the near term and how it should evaluate chemical risks.
“Workers are almost always first and worst exposed, and the new TSCA unequivocally covers them,” Manuel Gomez said at the Aug. 10 meeting. He said he was an independent consultant who spoke for himself.
“OSHA's health standards are badly outdated, and the agency is unable to issue standards in a timely fashion,” he said.
The EPA should prepare to take action to control harmful chemical exposures if OSHA fails to do so, Gomez said.
An undated letter Assistant Secretary for Occupational Safety and Health David Michaels sent to Jim Jones, EPA's assistant administrator for chemical safety and pollution prevention, about EPA's TCE, NMP and methylene chloride risk assessments shows OSHA maintains that the EPA may sometimes be better positioned to manage chemicals.TSCA Work Plan Chemicals1 With Possible Workplace Implications Chemical Health ConcernIllustrative Potential WorkplacesStatus Asbestos & Asbestos-like Fibers Known Human Carcinogen Construction Industry TSCA Risk Evaluation Not Yet Initiated Benzene Known Human Carcinogen Petrochemicals, petroleum refining, coke and coal chemical manufacturing; rubber tire manufacturing; steel workers; printers; rubber worker; firefighters; and gas station employees. TSCA Risk Evaluation Not Yet initiated 1-Bromopropane Possible Human Carcinogen Occupational Uses of Concern Identified By EPA Include use in spray adhesives, dry cleaning (including spot cleaning), and degreasing (vapor, cold cleaning, and aerosol). TSCA Risk Evaluation Initiated 2013 Formaldehyde Known Human Carcinogen Manufacture and Use of Formaldehyde-based Resins; Embalming; Garment Industry. TSCA Risk Evaluation Not Yet Initiated Methylene Chloride Probable Human Carcinogen Building Renovators Working with Paint Stripping Products Containing Methylene Chloride. TSCA Risk Evaluation Completed 2014; EPA Pursuing Risk Reduction N-Methyl-2-Pyrrolidone (NMP) Reproductive Toxicity Building Renovators Working with NMP-Containing Paint Strippers TSCA Risk Evaluation Completed 2015; EPA Pursuing Risk Reduction Trichloroethylene (TCE) Probable Human Carcinogen Workers Using TCE as a Degreaser in Small Commercial Shops and as a Stain Remover in Dry Cleaning. TSCA Risk Evaluation Completed 2014; EPA Pursuing Risk Reduction ------------- 1 EPA's TSCA Work Plan lists about 90 chemicals the agency plans to evaluate for human health and environmental risks.
“Given certain limitations imposed on OSHA's authority under the OSH Act, this agency believes TSCA provides the Environmental Protection Agency (EPA) with a means of eliminating or reducing the risks associated with these chemical uses in a more coordinated fashion across both consumer and occupational settings,” Michaels wrote.
Conrad echoed Gartner's remarks when he, too, told Bloomberg BNA the amended TSCA “is no longer a gap filling statute.”
The EPA already has shown it will consider workers' exposures in the TCE, NMP and methylene chloride risk assessments, he said. All three risk assessments concluded certain workplace and consumer uses of the chemicals could pose unreasonable risks.
Conrad, who represents chemical companies in his law and policy practice, said he expects to see workplace exposures and proposed controls in future EPA chemical risk evaluations and proposed regulations.
The Occupational Safety and Health Act is older than TSCA was before the chemicals law was updated, Conrad said.
The most egregious example of the Occupational Safety and Health Act being outdated, he said, is the $10,000 or six months imprisonment cap, or both, on the penalty OSHA can impose on an employer whose wilful negligence causes a worker's death.
Second violations by the same person are subject to a “a fine of not more than $20,000 or by imprisonment for not more than one year, or by both,” according to the 1970 law.
Norman, from Squire Patton Boggs, told Bloomberg BNA he expects there will and should be a lot of industry pushback if the EPA tries to become a workplace regulator.
“People aren’t going to sit back and watch EPA take over regulations of chemicals in the workplace,” he said.
The EPA's risk assessments of TCE and methylene chloride derived acceptable exposure limits for the three chemicals that were “orders of magnitude,” meaning hundreds to thousands of times stricter, than workplace standards, he wrote in an Insights article published in Bloomberg BNA.
The reasons for this difference isn't that OSHA's standards are older, Norman said. The agency used essentially the same data in 1997 to set its methylene chloride standard of 25 parts per million for an eight-hour time weighted average as the EPA did in 2014 to set its permissible exposure limit of 0.2 ppm, he said.
The EPA and OSHA use different risk assessment approaches and have different statutory requirements, and that can result in the EPA setting much lower limits, Norman said.
If the EPA uses the same approach in the future to assess chemicals used in the workplace as it did with TCE and methylene chloride, other important chemicals used by industry could face new restrictions, he said.
Anthony Noce, who focuses on environmental, health and safety issues at Haley & Aldrich, Inc., an environmental and engineering consulting firm, told Bloomberg BNA he doesn't expect the EPA to try and supplant OSHA.
The Lautenberg act's requirements for the EPA to consider workers comes in the context of potentially exposed and vulnerable subpopulations, and the agency is likely to discuss workers in that context, he said.
Lautenberg, however, gave the EPA the authority to obtain chemical data by orders rather than rules, and the information the agency is likely to secure using that authority could help OSHA and NIOSH protect workers, Noce said.
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Michaels' letter to EPA is available at http://src.bna.com/hU4 .
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