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Chemical Law’s Worker Safeguards Ditched by EPA, Advocates Say

Feb. 28, 2019, 10:00 AM

The EPA allowed a new ingredient for wood panel glues to be sold in December despite the potential that the compound might cause cancer.

It also let on the market a separate new paint ingredient that the agency’s own analysis said may potentially harm workers’ neurological systems and put their children’s development at risk.

These two cases illustrate a much broader “insidious” approach the Environmental Protection Agency is using as it reviews new chemicals, Jonathan Kalmuss-Katz, an attorney with Earthjustice, told Bloomberg Environment. That approach fails to protect mechanics, construction, and other workers in dozens of isolated decisions it makes, he said.

The EPA is abdicating its worker protection responsibilities across the board, agreed Richard Denison, lead senior scientist with the Environmental Defense Fund, who recently blogged about the situation.

The worker-safety issue hasn’t sparked the public outrage it warrants, Kalmuss-Katz said. That, he said, is because there hasn’t been one single policy statement that people can point to or offer opinions on.

The EPA answered such allegations by describing steps it takes to protect workers.

Democratic Interest

But Democrats who now hold the House’s majority are paying attention.

Rep. Paul Tonko (D-N.Y.), chairman of the House Energy and Commerce’s Subcommittee on the Environment and Climate Change, is considering exploring worker-safety issues as part of his oversight of EPA’s chemical policies, aides to Tonko said.

Worker safety concerns captured the most attention across all of the public comments that industry, environmental health, and labor advocates filed in nine batches of new chemical rules that the EPA has proposed since last August.

The nine batches of “significant new use rules,” or SNURs, would cover 362 new chemicals. That’s a subset of the more than 2,601 requests chemical makers have filed since 2016 asking the agency to let them make new chemicals or new microbes that produce chemicals, according to EPA information.

The agency tracks requests since June 22, 2016, the date when the Toxic Substances Control Act amendments became law.

EPA Defends Actions

“EPA is committed to protecting public health, including protecting workers from exposure to chemicals,” the agency said in an email.

The agency analyzes the ways workers might be injured by chemicals with and without personal protective equipment, such as gloves and respirators, the EPA said.

If needed, the EPA works with chemical manufacturers to help prepare language for safety data sheets to alert employees and companies that purchase the new chemical to its potential health risks and needed protections, the agency said. Safety data sheets accompany chemicals and chemical mixtures as they move through commerce.

The agency also expects companies to comply with federal and state laws protecting workers, the EPA said.

In the case of the wood panel glue ingredient, “EPA expects that workers will use appropriate personal protective equipment (i.e., impervious gloves), consistent with the safety data sheet” prepared by the company seeking agency approval to make the new chemical, the EPA said in granting its permission.

In addition to possibly being carcinogenic, the glue ingredient might harm the liver and kidneys, and make it harder for workers to have children at sufficient levels of exposure, the agency’s analysis found.

The sale of the industrial and architectural paint chemical was based on the presumption that workers would be protected with gloves, respirators, and other equipment, Kalmuss-Katz said.

Safety Data Sheet ‘Hallucination’

The EPA’s worker safety statements show it doesn’t understand the workplace, said David Michaels, who served as assistant secretary of labor of the Occupational Safety and Health Administration during the Obama administration.

“The idea that a direction in a safety data sheet would be followed by every employer is a hallucination,” he said.

OSHA’s Hazard Communication Standard—revised in 2012 under Michaels’ watch—requires companies to make safety data sheets available to workers, he said.

The “informational rule” does not, however, require the employer to use ventilation or other recommended engineering controls or provide personal protective equipment, Michaels said.

Congress recognized “workers deserve as much protection as everyone else” through provisions of the 2016 TSCA amendments that require the EPA to examine workplace exposures, he said.

“This administration is abandoning that concept,” Michaels said.

Obligations Imposed

Neither the U.S. Chamber of Commerce, National Association of Manufacturers, nor the Society of Chemical Manufacturers and Affiliates replied to Bloomberg Environment’s requests for comment on the worker-safety allegations against the EPA.

Safety data sheets impose obligations on employers, said Richard E. Engler, director of chemistry for the Bergeson & Campbell PC law firm.

The firm manages the TSCA New Chemicals Coalition in which chemical manufacturers share experiences with and concerns about the agency’s new chemicals program.

The safety sheets let employers know about chemical hazards they must protect against, he said.

Inconsistent Controls

The Environmental Defense Fund said the agency is using different controls for the same new chemicals.

The group referred to a combination of tools the EPA uses to protect workers that might be exposed to a specific new chemical that a manufacturer wants to make.

In some cases, the EPA negotiates with the company that originally wanted to introduce the new chemical into commerce, and that company agrees to use specific engineering controls or other means to protect its workers. That agreement becomes an enforceable “consent order.”

The agency then proposes a “significant new use rule” to impose those same controls on any other company making or using the same chemical in the same way as the first one did—keeping the competitive playing field level.

If the original manufacturer—or other chemical producers or processors want to make or use the new chemical in any other way—they must first get agency permission.

EDF’s chemical policy analysts have documented dozens of discrepancies between the protections the EPA requires in specific consent orders and the corresponding new use rules for the same chemical, Denison said.

For example, EDF described six specific instances where consent orders and their rules were different in comments focused on a batch of rules the agency proposed last November for 66 chemicals.

Some chemical manufacturers have flagged inconsistencies in their comments as well.

EPA Doing ‘Good Job’

The agency may have legitimate reasons for proposing a SNUR that differs in some ways from its corresponding consent order, the American Chemistry Council said in an email.

Manufacturing a chemical might require one type of engineering controls, it said. But companies that use, or “process,” that same chemical might require different controls to achieve an equivalent protection for workers, it said.

“EPA does a good job of identifying workplace exposures,” said Lynn L. Bergeson, managing partner of Bergeson & Campbell PC in an email.

If consent orders and their corresponding new use rules don’t match, parties can urge EPA to align them as it serves everyone’s interest to have the same controls apply, she said.

On potential inconsistencies, Bergeson said, “I am hard-pressed to classify this issue as a recurrent problem.”

She added that the agency’s policies will continue to evolve as its proposed rules are finalized.

To contact the reporter on this story: Pat Rizzuto in Washington at

To contact the editors responsible for this story: Gregory Henderson at; Chuck McCutcheon at; Steven Gibb at