By Tina M. Stanczewski, Esq.

Since the 2016 passage of the Lautenberg Chemical Safety for the 21st Century Act (Lautenberg Act), controversy has developed over the requirements under the Toxic Substances Control Act (TSCA) for the EPA to make risk assessments and determine protection measures for workers.

In December 2017, EPA held a public meeting to discuss the framework it proposes to use for assessing new chemicals. The risk assessment of new chemicals, includes the health impact to workers. EPA requested public comments on its new chemicals decision framework, issued in November 2017. The docket for comments was EPA-HQ-OPPT-2017-0585, which closed on January 20, 2018.

The purpose of TSCA is to “regulate new commercial chemicals before they enter the market, to regulate existing chemicals (1976) when they pose an unreasonable risk to health or to the environment, and to regulate their distribution and use.”

A key element of TSCA is the assessment of a chemical’s risk to worker’s health. In general, according to the EPA, TSCA requires the following:

• Pre-manufacture notification for "new chemical substances" before manufacture,
• Testing of chemicals by manufacturers, importers, and processors where risks or exposures of concern are found,
• Issuance of significant new use rules (SNURs), when [EPA] identifies a "significant new use" that could result in exposures to, or releases of, a substance of concern,
• EPA to maintain the TSCA Inventory, which contains more than 83,000 chemicals,
• Those importing or exporting chemicals, to comply with certification reporting and/or other requirements,
• Reporting and record-keeping by persons who manufacture, import, process, and/or distribute chemical substances in commerce, and
• Any person who manufactures (including imports), processes, or distributes in commerce a chemical substance or mixture and who obtains information which reasonably supports the conclusion that such substance or mixture presents a substantial risk of injury to health or the environment to immediately inform EPA, except where EPA has been adequately informed of such information. 

Although the EPA is generally focused on environmental impact to the air, water, and land relating to communities, worker exposure to chemicals falls under TSCA. With workers facing acute and chronic diseases from occupational exposure to chemicals, Congress specifically tasked the EPA under TSCA, Section 5(e) with assessing how new chemicals entering the marketplace may harm worker’s health.

Controversy has arisen in two areas: 1) whether EPA is overstepping its authority when assessing risk to workers and theses duties should fall to OSHA and 2) whether EPA is implementing Section 5(e) appropriately to protect workers. Section 5(e) uses an exposure model to determine the risk of a new chemical to workers. EPA announced a new chemicals decision-making framework in 2017 that considers control measures such as engineering and PPE use when analyzing worker risk. EPA sought comments on this framework.

This analysis for worker exposure includes categorization of exposure and measures to reduce exposure. Risk assessment under the “Framework” is triggered when there is a significant and substantial chemical exposure to workers, such as:

• High number of workers are exposed (> 1,000 workers),
• Acute Worker Exposure through Inhalation (> 100 workers exposed to > 10 mg/day),
• Chronic Worker Exposure through Inhalation (> 100 workers exposed to 1-10 mg/day for > 100 days/yr), and
• Chronic Worker Exposure through Dermal layer (> 250 workers exposed by routine dermal contact for > 100 days/yr).

Supporters of the EPA assessing and enforcing a chemical’s risk to worker health cite numerous shortcomings with OSHA’s enforcement abilities. The primary concerns include:

• The data used by OSHA to develop its permissible exposure limits (PELs) is based on pre-1960 information, often from the 1940s and 1950s.
• Since 1970 OSHA has only issued 17 comprehensive standards to regulate toxins.
• OSHA is unable to easily update its PELs and regulations around chemicals due to legal restrictions imposed by the OSH Act.
• EPA can ban a chemical whereas OSHA can only regulate it.

Opponents of the EPA regulating the risk of chemical exposure to workers rely on the core purpose of the OSHA Act. Some of the arguments include:

• The general duty clause provides OSHA with a broad enforcement mechanism to cite employers for exposing workers to known and new chemicals over a legally acceptable limit. Employers have a legal obligation to provide workers a workplace free from recognized hazards that “are causing or likely to cause death or serious physical harm.” 
• OSHA’s respiratory protection (29 CFR 1910.134) standard establishes standards for respirator use and measures when chemicals are present in the workplace.
• TSCA requires EPA and OSHA to consult on new chemical regulations
• OSHA is best suited to regulate and enforce worker exposure.

Currently, EPA has several tools to protect worker health. Once it is known that a new chemical may cause unreasonable risk to worker health, then EPA can issue Section 5(e) orders to set a specific exposure limits and dictate control measures. The Agency can also implement SNURs. One side is arguing that EPA should not be using the orders to set limits or dictate control measures, but allow OSHA to regulate worker health. Worker-advocates are supportive of EPA setting limits, but do not believe credit should be given for PPE or engineering controls. It is expected that EPA will review the recently submitted comments on the Framework and more guidance will be developed as differing opinions and litigation ensues.

Tina Stanczewski, Esq., is an associate attorney with the Law Office of Adele L. Abrams. Abrams is ASSE's federal representative. Stanczewski has a J.D. in Environmental Law and Public and Government Service from the University of Baltimore School of Law.

Originally published Feb. 15, 2018.