EPA Tackles Worker Safety Charges in 13 New Chemical Rules (1)

March 28, 2019, 6:32 PMUpdated: March 28, 2019, 10:12 PM

The EPA March 28 tackled head on allegations that it neglected worker safety protections in deciding to allow new chemicals to enter commerce, releasing “significant new use rules” for 13 substances.

The final rules (RIN:2070-AB27) include at least four pages in which the Environmental Protection Agency responds to public comments alleging the agency’s new chemicals program systematically fails to protect workers and violates the Toxic Substances Control act in other ways.

The rules provide a “rock solid” legal argument supporting EPA’s position that it is protecting worker health as it decides whether new chemicals may be manufactured or imported into the U.S., Lynn Bergeson, managing partner of Bergeson & Campbell, PC, told Bloomberg Environment.

The agency merely repeats erroneous arguments it already shared in explanations providing its rationale for allowing each chemical to be produced, said Richard Denison, lead senior scientist with the Environmental Defense Fund.

The worker-safety issue is core to EPA’s implementation of the law, he said.

First of Its Kind

The rules require chemical manufacturers to notify the agency 90 days before using any of the chemicals in a way the agency designates as new.

For example, manufacturing a new plastic additive without controls limiting workers’ exposure to dust would be a “new use” triggering the notification requirement. The agency would then review a company’s proposed use and decide if it would be alright or needed some type of control.

This is the first batch of this particular type of new use rule the agency has issued since the Toxic Substances Control Act was overhauled in 2016.

In this case, the type of SNUR the agency issued means the new chemicals were allowed to go into commerce without their original manufacturer being required to sign enforceable consent orders to do certain things, like specifically limit a chemical’s release into water.

Concerns the agency had about ways people or the environment might be harmed by the chemicals are being managed through the final rules. The rules will be effective 60 days after they are published in the Federal Register.

Headed to Court?

The EPA’s legal rationale—which explains its strategy to manage worker safety, other health, or environmental risks new chemicals might pose—was carefully crafted, said Bergeson, whose law firm manages the TSCA New Chemicals Coalition. Through that coalition, chemical manufacturers to share experiences with and concerns about the agency’s new chemicals program.

The agency likely prepared its responses to previous criticism in case these final rules are challenged in court, she said.

Bergeson referred to perspectives environmental, labor, and other groups have shared in comments on proposed rules and chemical analyses, that they have posted online, and that were made by witnesses including a former Occupational Safety and Health Administration (OSHA) official during a March 13 subcommittee hearing.

She also referred to a lawsuit the Natural Resources Defense Council brought against EPA last year.

The NRDC sued the agency in the U.S. Court of Appeals for the Second Circuit. The council charged that an agency policy that allowed it to approve new chemicals that might pose an undue risk without simultaneously controlling that risk violated TSCA.

The group dropped that lawsuit because, at the time, the agency had not allowed new, potentially risky chemicals into commerce without enforceable consent orders that controlled those risks.

NRDC attorneys could not immediately be reached for comment. Denison also did not comment on a possible lawsuit.

Faulty Reasoning?

But Denison says the line of reasoning the EPA lays out as it claims to protect workers is faulty, and the agency’s actions violate TSCA.

The agency takes an inaccurate view of the safety data sheets that accompany a chemical in commerce, he said and argued previously in a blog. The EPA incorrectly maintains that employers must comply with safety suggestions in the sheets, but these are recommendations, not requirements, he said.

The EPA also asserts that OSHA regulations are sufficient to satisfy TSCA, Denison said.

Yet OSHA allows workers to face risk levels that are a 1,000 times higher than the EPA allows under the chemicals and other laws, he said.

TSCA expressly identifies workers as a susceptible population the agency must protect, Denison said.

“EPA is obligated to protect workers under TSCA and under TSCA’s safety standard,” he said.

(Comments from Richard Denison added)

To contact the reporter on this story: Pat Rizzuto in Washington at prizzuto@bloombergenvironment.com

To contact the editors responsible for this story: Gregory Henderson at ghenderson@bloombergenvironment.com; Steven Gibb at sgibb@bloombergenvironment.com; Pamela Atkins at patkins@bloomberglaw.com

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