Is there no limit to industry’s overreach and hubris when it comes to new chemicals under TSCA?

Richard Denison, Ph.D.is a Lead Senior Scientist.

We’ve already blogged about how changes the agency is making to its reviews of new chemicals under the Toxic Substances Control Act (TSCA) are illegal as well as bad policy.  But an industry letter and attachment added last week to EPA’s new chemicals docket shows the chemical industry isn’t done yet in seeking to eviscerate the program.

The letter and position statement were submitted to Jeffery Morris, Director of EPA’s Office of Pollution Prevention and Toxics (OPPT) by something called the TSCA New Chemicals Coalition (NCC).

They raise a multitude of red flags.

The NCC is a creation of the industry law firm Bergeson & Campbell (B&C). The letter to Morris describes NCC as “a group of representatives from over 20 companies that have come together to identify new chemical notification issues under the amended Toxic Substances Control Act (TSCA) and to work collaboratively with you and your team to address them.”

First red flag:  Nowhere are the 20+ companies identified, not in the letter or associated position statement, nor on B&C’s web pages for NCC.  Such secrecy always sets off an alarm when it comes to the chemical industry’s history of forming misleading front groups and coalitions.  Why don’t the companies want their identities known?

Second red flag:  The NCC letter and position statement claim that “OSHA has in place an extensive regulatory scheme, as well as enforcement mechanisms, governing chemical exposure in the workplace” and refers to the “robust nature of the existing OSHA regulatory program” and its “overarching and comprehensive requirements” that apply in the workplace.  Now, anyone outside of industry readily acknowledges that OSHA’s ability to adequately address workplace exposures has been decimated over time – through sustained industry efforts on many fronts, including mounting legal challenges to OSHA’s authority and successfully pressing for reduction after reduction in its budget and staffing.  Those attacks continue today, and if anything have accelerated under the Trump Administration.

Why then, you may wonder, is NCC writing to the director of EPA’s TSCA office to tout OSHA’s sweeping authority over workplace chemical exposures?  By now you may be getting a sense of where this is headed … .  

The chemical industry is apparently not content with bullying EPA to move away from carrying out its statutory duty to issue orders to mitigate potential risks arising from reasonably foreseen conditions of use of new chemicals.  It’s now trying to extend that victory and compel EPA to abandon issuing orders even where EPA finds a company’s intended conditions of use may present unreasonable risks to workers.

Let me step back briefly to provide some necessary background.  First, TSCA has always provided EPA with the authority to regulate chemical exposures in workplaces, and EPA has done so for many decades.  Second, last year’s amendments to TSCA not only retained that authority that overlaps with OSHA’s (despite some industry efforts to strip it from TSCA), it strengthened that authority, by explicitly identifying workers as a “potentially exposed or susceptible subpopulation” and directing EPA to identify and evaluate risks, and mitigate unreasonable risks, faced by workers – whether from chemicals already in use or new chemicals just entering the market.

NCC acknowledges part of this authority:  It does not argue that EPA shouldn’t do such evaluations.  But if EPA identifies potential risks to workers from a new chemical, rather than issue an order to mitigate it (as is required by law), NCC says EPA should simply tell the company and OSHA of its concerns and leave any further consideration to them.  That mere notification, claims NCC, then clears EPA to find that the new chemical is “not likely to present an unreasonable risk” to workers and (assuming EPA doesn’t find there are potential risks other than to workers) give the company the green light to commence manufacture and use.

Lest you don’t believe me, let me quote from the NCC position statement:

The TSCA NCC believes that for many, if not most, new chemicals for which EPA has proposed workplace restrictions under new TSCA, once EPA has informed OSHA and the notifier of its occupational risk assessment, that will be sufficient to ensure adequate workplace protection and to make any unreasonable risk to workers “not likely.”

And from its letter setting forth EPA’s “proper role:”

[T]he proper role for EPA should be to provide hazard identification and risk assessment information to the new chemical notifier and to OSHA to make these parties fully aware of EPA’s assessment and its identified occupational concerns, if any.

… NCC believes that EPA should disfavor issuing TSCA Section 5(e) orders that mandate use of particular PPE or other workplace-specific measures to mitigate occupational exposure. Instead, the TSCA NCC recommends the following approach if EPA identifies a workplace-specific risk concern:

1. EPA should consult with OSHA on the workplace risk concern.

2. EPA should inform the notifier of its assessment and concerns.

3. After the OSHA consultation and notifier communications are completed, EPA should no longer engage but instead rely on the employer’s responsibilities mandated by OSHA, as well as OSHA’s established expertise and robust existing regulatory program, to ensure worker protection.

There are so many things wrong with this that it’s hard to know where to start.

First, it’s patently illegal.  Last year’s reforms give EPA a direct mandate to protect workers as a “potentially exposed or susceptible subpopulation.”  The law gives EPA no mandate or authority once it identifies a potential workplace risk from a new chemical  to simply toss it over the fence into its neighbor agency’s back yard.  If EPA identifies a potential risk, it must fully protect against it.

Second, NCC makes a big deal about a provision in TSCA that says EPA should consult with OSHA “to the extent practicable” before EPA imposes restrictions on a new chemical.  But “consult” does not mean merely to inform someone else and then wash one’s hands of the matter.  A requirement that EPA “consult” with OSHA does not allow EPA to transfer its duties to OSHA.  EPA retains the mandate to protect against the unreasonable risk after any such consultation.  Yet NCC would have EPA instead rush to issue a “not likely” finding without even waiting for a response from OSHA, let alone action on OSHA’s part to actually mitigate the risk.  No way is that legal.

As a matter of law, for EPA to reasonably rely on actions taken by OSHA to make a finding, those OSHA actions could not be speculative and theoretical.  Before it could make a finding, EPA would need to wait for OSHA to actually act.  That process would be time-consuming, but if NCC truly believed the theory it is espousing, then it would accept that EPA could not issue a final finding on a new chemical until OSHA took final action, even if that delayed an EPA finding for weeks, months or years.  NCC’s theory that EPA could simply “no longer engage” has no basis in TSCA or the plain meaning of “consult.”

Third, despite NCC’s outlandish claims to the contrary, OSHA lacks authority (not to mention capacity) to clean up after EPA in this manner.  Just one example:  OSHA has no authority to mandate that companies test their chemicals.  If OSHA needs data on chemical hazards, it must request, through the Interagency Testing Committee, that EPA require the testing under TSCA.  That process has rarely gone well or quickly.  In 1991, OSHA requested through the ITC that EPA require a simple dermal absorption test to be conducted on 658 chemicals for which it had concerns about worker exposure.  Thirteen years later, EPA finally issued the rule – covering only 34 of those chemicals.  (I strongly suspect this massively diminished testing capability is one of NCC’s motivations here.)

Fourth, NCC knows full well that OSHA’s risk standard – “no significant risk of material harm” – is vastly more lenient than TSCA’s unreasonable risk standard.  That’s because the industry for years argued (unsuccessfully) in the debate over TSCA reform to use the OSHA standard instead of the unreasonable risk standard that Congress retained.  As interpreted by the courts and subsequently implemented by OSHA, the OSHA standard allows risk to workers that are multiple orders of magnitude higher than those EPA would consider constitute unreasonable risks.

If NCC believes that OSHA’s standard should apply to any new chemical risks EPA drops into its lap, then workers would receive far less protection (and companies could well save a lot of money) under NCC’s proposed approach.  If on the other hand NCC believes TSCA’s risk standard would still apply in such cases, how does it expect OSHA to use its limited authority to achieve this far more stringent standard?

OSHA itself acknowledges the severe limitations to its authority.  For example, OSHA notes that its standard-setting system is broken, and in fact it has been able to issue standards for only 39 agents since 1971 (and only three in the last 15 years):

OSHA recognizes that many of its permissible exposure limits (PELs) are outdated and inadequate for ensuring protection of worker health. Most of OSHA's PELs were issued shortly after adoption of the Occupational Safety and Health (OSH) Act in 1970, and have not been updated since that time.

The Government Accountability Office (GAO) affirmed this state of affairs in a 2012 reported titled “Multiple Challenges Lengthen OSHA’s Standard Setting.”

You have to credit NCC with one thing:  having a lot of chutzpah.  After the industry’s success in severely weakening OSHA, it now seeks to compel EPA – to which Congress gave greater authority to regulate chemicals just last year – to instead cede that authority and transfer its obligations over to a far weaker agency.

I could go on, and I expect we’ll need to in other fora, should EPA show any receptivity (I wish I could say with confidence it won’t) to NCC’s new demands to further weaken TSCA’s new chemicals program.

Let me end this post by noting a cruel irony in this development.  NCC acknowledges that EPA has regulated workplace exposures through orders issued for new chemicals for many decades under the old TSCA, not just since last year’s reforms:

NCC recognizes that the approach being advocated is at odds with EPA’s longstanding practice in assessing and regulating new chemicals. Nonetheless, for the reasons provided above and elaborated in the attachment, TSCA NCC believes that EPA’s prior and current approach is mistaken.

I mentioned that NCC was created and is run by Bergeson & Campbell.  B&C employs in senior positions as its “B&C Team” for staffing NCC at least four former EPA officials who were among the architects of the new chemicals review program under the old TSCA.

Funny – by which I mean sad – how, now that they’re in the private sector representing (unnamed) chemical companies, they’re disowning all that work they did.  Not to mention throwing worker protections from potentially toxic chemicals under the bus.

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