TSCA reform: What does it mean for worker safety?
September 25, 2016
For the first time, workers are defined as a “susceptible subpopulation” within the chemical safety law.
Only five out of 62,000-plus existing chemicals have been banned since TSCA was enacted in 1976.
OSHA stated that the agency is looking forward to working with EPA and that the new law will improve worker safety.
The Frank R. Lautenberg Chemical Safety for the 21st Century Act spans more than 50,000 words. Yet one phrase within the document could hold the power to improve protections for millions of workers in the United States: The legislation amends the Toxic Substances Control Act to create specific safeguards for “potentially exposed or susceptible subpopulations … such as infants, children, pregnant women, workers, or the elderly.”
It might be easy to overlook “workers” among the listed at-risk groups. However, stakeholders who have spent years fighting for TSCA reform say the wording is no small feat. The revised law gives the Environmental Protection Agency the power to restrict chemicals based on health risks.
“That’s a big add,” said Lynn Bergeson, who specializes in TSCA reform as managing partner at Washington law firm Bergeson & Campbell PC. “EPA heretofore has often worked with OSHA on worker exposure issues, particularly in the context of new chemical review, but with this new definition – ‘a potentially exposed or susceptible subpopulation’ – workers as a demographic are now a more important, defined group that could drive risk assessment.”
Read the Frank R. Lautenberg Chemical Safety for the 21st Century Act
Employers in industries such as manufacturing and construction work with chemicals every day. Some workers use respiratory protection to guard against the hazards from paint thinners, ammonia, bleach and other hazardous substances. Others work in buildings that contain asbestos, which may cause deadly lung diseases such as cancer. Still others use degreasers, spray adhesives and other cleaning products that contain 1-Bromopropane, or 1-BP, which has been linked to cancer and reproductive disorders. (For more on 1-Bromopropane, see EPA review committee issues report on 1-Bromopropane risk assessment draft.)
The intent of TSCA when it was enacted in 1976 was to protect the public and the environment from danger, but it did not grant EPA the authority to regulate the more than 62,000 chemicals in use at the time. EPA could review and regulate only new chemicals introduced after the law went into effect.
As a result of this and other red tape, only five chemicals were banned.
“Forty years after TSCA was enacted, there are still tens of thousands of chemicals on the market that have never been evaluated for safety, because TSCA didn’t require it,” EPA Administrator Gina McCarthy wrote in a June 22 blog post on the agency’s website. “And the original law set analytical requirements that were nearly impossible to meet, leaving EPA’s hands tied – even when the science demanded action on certain chemicals.”
Advocates clamored for many years for Congress to solve the problem. One member listened.
Frank Lautenberg (D-NJ) spent five terms in the Senate and devoted much of that time to improving chemical safety before his death in 2013. On June 22 of this year, President Barack Obama signed the Frank R. Lautenberg Chemical Safety Act for the 21st Century into law.
That signature granted EPA the authority to provide better protections from toxic chemicals for the public and the environment. Its directive to protect workers as a vulnerable population aligns with the work of OSHA, which has lamented outdated permissible exposure limits for chemical hazards and a lack of funding to protect workers as effectively as possible.
OSHA has stated that it is eager to partner with EPA, especially as the agency faces a possible 3.3 percent budget cut.
“OSHA is reviewing the new law and looks forward to working with EPA as it develops an implementation strategy,” OSHA spokesperson Kimberly Darby told Safety+Health. “We believe the changes will help workers by providing improved safety, health and exposure information for chemicals currently in the marketplace.”
Chemical safety experts agree a collaborative approach to protecting workers makes sense. OSHA regulates worker exposure to chemicals in large part through its Hazard Communication Standard (1910.1200), which calls for employers to clearly inform workers about chemical and toxic substance hazards in the workplace, as well as effective ways to protect themselves from those hazards. Employers need to ensure chemical safety labels and Safety Data Sheets on chemical hazards are available, and workers should be trained on appropriate handling of those chemicals.
With the update of TSCA, EPA now has the muscle to force action and restrict harmful chemicals. In addition, Section 9(e) of the new legislation, “Exposure Information,” specifies that the administrator should inform “the relevant Federal agency or office of the Environmental Protection Agency” if he or she discovers chemical exposures that may be prevented or reduced under another federal law.
“In other words, in our view, the law as revised will almost inevitably force EPA to be more engaged with and involved in the referral of worker exposure issues to OSHA,” Bergeson said. “The fact that there is this new subsection means that the EPA will be working with other federal agencies, and this has OSHA written all over it.
“As much as we would like to believe that all employers are faithfully adhering to all PPE requirements and so on and so forth, to the extent that is not happening, workers can be disproportionately exposed. The chemical law here reflects the fact that Congress wishes workers to be a part of that demographic that is protected because they may be disproportionately and uniquely susceptible.”
The next step for EPA is to determine how and where to achieve the greatest impact.
The agency has released its first-year implementation plan, which includes an outline for EPA to conduct risk assessments and define high-priority chemicals. EPA said it plans to publish a list of 10 Work Plan chemicals and start a formal risk evaluation on them in mid-December, when the agency also plans to publish a proposed rule establishing its process for evaluating the risk level of high-priority chemicals.
EPA’s first-year implementation plan
Many organizations, including the Environmental Defense Fund, a New York-based advocacy group, have participated in meetings conducted by EPA to discuss the risk evaluation process and how to establish fees under TSCA.
“This is a major reform of America’s badly broken chemical safety system,” Keith Gaby, spokesperson for EDF, told S+H. “It’s going to help workers because EPA now has the authority to restrict chemicals that cause cancer and other health problems – and that will mean reduced exposure for those who make the products that used them.”
Bergeson said the law could revolutionize chemical management in the United States. She encourages employers to seek as much information on the law as possible and to be active participants in EPA’s risk evaluation process.
“Number one: Read the law,” Bergeson said. “Number two: Be mindful of the implications in your value chain. If you are a manufacturer, you may not be aware of the fact that there might be closer coordination with OSHA or with the Consumer Product Safety Commission. Number three: There are many ongoing rulemakings that will have a very significant impact. They’re in play right now. So participate, be aware of, comment on and work with your trade association or your VP of EHS to make sure you know how these rules are going to impact you.
“What I urge our people to do is know your chemicals. If a very important chemical component in your manufacturing line is thought to pose risks that are uniquely impactful of sensitive subpopulations of workers or others, it could be deselected. There are no surprises here. The federal government has a very difficult time operating in secret. So understand it, participate, and be prepared.”