{"id":7261,"date":"2017-12-12T11:01:58","date_gmt":"2017-12-12T16:01:58","guid":{"rendered":"http:\/\/blogs.edf.org\/health\/?p=7261"},"modified":"2024-02-12T11:02:04","modified_gmt":"2024-02-12T16:02:04","slug":"is-there-no-limit-to-industrys-overreach-and-hubris-when-it-comes-to-new-chemicals-under-tsca","status":"publish","type":"post","link":"https:\/\/blogs.edf.org\/health\/2017\/12\/12\/is-there-no-limit-to-industrys-overreach-and-hubris-when-it-comes-to-new-chemicals-under-tsca\/","title":{"rendered":"Is there no limit to industry\u2019s overreach and hubris when it comes to new chemicals under TSCA?"},"content":{"rendered":"

Richard Denison, Ph.D.,\u00a0<\/em>is a Lead Senior Scientist.<\/p>\n

We\u2019ve already blogged about <\/a>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.\u00a0 But an industry letter and attachment added last week to EPA\u2019s new chemicals docket<\/a> shows the chemical industry isn\u2019t done yet in seeking to eviscerate the program.<\/p>\n

The letter <\/a>and position statement <\/a>were submitted to Jeffery Morris, Director of EPA\u2019s Office of Pollution Prevention and Toxics (OPPT) by something called the TSCA New Chemicals Coalition (NCC).<\/p>\n

They raise a multitude of red flags.<\/p>\n

The NCC is a creation of <\/a>the industry law firm Bergeson & Campbell (B&C). The letter to Morris describes NCC as \u201ca 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.\u201d<\/p>\n

First red flag:\u00a0 Nowhere are the 20+ companies identified, not in the letter or associated position statement, nor on B&C\u2019s web pages for NCC<\/a>.\u00a0 Such secrecy always sets off an alarm when it comes to the chemical industry\u2019s history of forming misleading front groups and coalitions.\u00a0 Why don\u2019t the companies want their identities known?<\/p>\n

Second red flag:\u00a0 The NCC letter and position statement claim that \u201cOSHA has in place an extensive regulatory scheme, as well as enforcement mechanisms, governing chemical exposure in the workplace\u201d and refers to the \u201crobust nature of the existing OSHA regulatory program\u201d and its \u201coverarching and comprehensive requirements\u201d that apply in the workplace.\u00a0 Now, anyone outside of industry readily acknowledges that OSHA\u2019s ability to adequately address workplace exposures has been decimated over time \u2013 through sustained industry efforts on many fronts, including mounting legal challenges to OSHA\u2019s authority and successfully pressing for reduction after reduction in its budget and staffing.\u00a0 Those attacks continue today, and if anything have accelerated <\/a>under the Trump Administration.<\/p>\n

Why then, you may wonder, is NCC writing to the director of EPA\u2019s TSCA office to tout OSHA\u2019s sweeping authority over workplace chemical exposures?\u00a0 By now you may be getting a sense of where this is headed … .\u00a0\u00a0<\/p>\n

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<\/em> conditions of use of new chemicals.\u00a0 It\u2019s now trying to extend that victory and compel EPA to abandon issuing orders even where EPA finds a company\u2019s intended<\/em> conditions of use may present unreasonable risks to workers.<\/p>\n

Let me step back briefly to provide some necessary background.\u00a0 First, TSCA has always provided EPA with the authority to regulate chemical exposures in workplaces, and EPA has done so for many decades.\u00a0 Second, last year\u2019s amendments to TSCA not only retained that authority that overlaps with OSHA\u2019s (despite some industry efforts to strip it from TSCA), it strengthened<\/em> that authority, by explicitly identifying workers as a \u201cpotentially exposed or susceptible subpopulation\u201d and directing EPA to identify and evaluate risks, and mitigate unreasonable risks, faced by workers \u2013 whether from chemicals already in use or new chemicals just entering the market.<\/p>\n

NCC acknowledges part of this authority:\u00a0 It does not argue that EPA shouldn\u2019t do such evaluations.\u00a0 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.\u00a0 That mere notification, claims NCC, then clears EPA to find that the new chemical is \u201cnot likely to present an unreasonable risk\u201d to workers and (assuming EPA doesn\u2019t find there are potential risks other than to workers) give the company the green light to commence manufacture and use.<\/p>\n

Lest you don\u2019t believe me, let me quote from the NCC position statement:<\/p>\n

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 \u201cnot likely.\u201d<\/p>\n

And from its letter setting forth EPA\u2019s \u201cproper role:\u201d<\/p>\n

[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\u2019s assessment and its identified occupational concerns, if any.<\/p>\n

… 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:<\/p>\n

1. EPA should consult with OSHA on the workplace risk concern.<\/p>\n

2. EPA should inform the notifier of its assessment and concerns.<\/p>\n

3. After the OSHA consultation and notifier communications are completed, EPA should no longer engage but instead rely on the employer\u2019s responsibilities mandated by OSHA, as well as OSHA\u2019s established expertise and robust existing regulatory program, to ensure worker protection.<\/p>\n

There are so many things wrong with this that it\u2019s hard to know where to start.<\/p>\n

First, it\u2019s patently illegal.\u00a0 Last year\u2019s reforms give EPA a direct mandate to protect workers as a \u201cpotentially exposed or susceptible subpopulation.\u201d\u00a0 The law gives EPA no mandate or authority once it identifies a potential workplace risk from a new chemical \u00a0to simply toss it over the fence into its neighbor agency\u2019s back yard.\u00a0 If EPA identifies a potential risk, it must fully protect against it.<\/p>\n

Second, NCC makes a big deal about a provision in TSCA that says EPA should consult<\/em> with OSHA \u201cto the extent practicable\u201d before EPA imposes restrictions on a new chemical. \u00a0But \u201cconsult\u201d does not mean merely to inform someone else and then wash one\u2019s hands of the matter.\u00a0 A requirement that EPA \u201cconsult\u201d with OSHA does not allow EPA to transfer its duties to OSHA.\u00a0 EPA retains the mandate to protect against the unreasonable risk after any such consultation.\u00a0 Yet NCC would have EPA instead rush to issue a \u201cnot likely\u201d finding without even waiting for a response from OSHA, let alone action on OSHA\u2019s part to actually mitigate the risk.\u00a0 No way is that legal.<\/p>\n

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.\u00a0 Before it could make a finding, EPA would need to wait for OSHA to actually act.\u00a0 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.\u00a0 NCC\u2019s theory that EPA could simply \u201cno longer engage\u201d has no basis in TSCA or the plain meaning of \u201cconsult.\u201d<\/p>\n

Third, despite NCC\u2019s outlandish claims to the contrary, OSHA lacks authority (not to mention capacity) to clean up after EPA in this manner.\u00a0 Just one example:\u00a0 OSHA has no authority to mandate that companies test their chemicals.\u00a0 If OSHA needs data on chemical hazards, it must request, through the Interagency Testing Committee<\/a>, that EPA require the testing under TSCA.\u00a0 That process has rarely gone well or quickly.\u00a0 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.\u00a0 Thirteen years later, EPA finally issued the rule \u2013 covering only 34 of those chemicals.\u00a0 (I strongly suspect this massively diminished testing capability is one of NCC\u2019s motivations here.)<\/p>\n

Fourth, NCC knows full well that OSHA\u2019s risk standard \u2013 \u201cno significant risk of material harm\u201d \u2013 is vastly more lenient than TSCA\u2019s unreasonable risk standard.\u00a0 That\u2019s because the industry for years argued<\/a> (unsuccessfully) in the debate over TSCA reform to use the OSHA standard instead of the unreasonable risk standard that Congress retained.\u00a0 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.<\/p>\n

If NCC believes that OSHA\u2019s 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\u2019s proposed approach.\u00a0 If on the other hand NCC believes TSCA\u2019s 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?<\/p>\n

OSHA itself acknowledges <\/a>the severe limitations to its authority.\u00a0 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):<\/p>\n

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.<\/p>\n

The Government Accountability Office (GAO) affirmed this state of affairs in a 2012 reported titled \u201cMultiple Challenges Lengthen OSHA\u2019s Standard Setting<\/a>.\u201d<\/p>\n

You have to credit NCC with one thing:\u00a0 having a lot of chutzpah.\u00a0 After the industry\u2019s success in severely weakening OSHA, it now seeks to compel EPA \u2013 to which Congress gave greater authority to regulate chemicals just last year \u2013 to instead cede that authority and transfer its obligations over to a far weaker agency.<\/p>\n

I could go on, and I expect we\u2019ll need to in other fora, should EPA show any receptivity (I wish I could say with confidence it won\u2019t) to NCC\u2019s new demands to further weaken TSCA\u2019s new chemicals program.<\/p>\n

Let me end this post by noting a cruel irony in this development.\u00a0 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\u2019s reforms:<\/p>\n

NCC recognizes that the approach being advocated is at odds with EPA\u2019s longstanding practice in assessing and regulating new chemicals. Nonetheless, for the reasons provided above and elaborated in the attachment, TSCA NCC believes that EPA\u2019s prior and current approach is mistaken.<\/p>\n

I mentioned that NCC was created and is run by Bergeson & Campbell.\u00a0 B&C employs in senior positions as its \u201cB&C Team\u201d for staffing NCC<\/a> at least four former EPA officials who were among the architects of the new chemicals review program under the old TSCA.<\/p>\n

Funny \u2013 by which I mean sad \u2013 how, now that they\u2019re in the private sector representing (unnamed) chemical companies, they\u2019re disowning all that work they did. \u00a0Not to mention throwing worker protections from potentially toxic chemicals under the bus.<\/p>\n","protected":false},"excerpt":{"rendered":"

Richard Denison, Ph.D.,\u00a0is a Lead Senior Scientist. We\u2019ve 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.\u00a0 But an industry letter and attachment added last week to EPA\u2019s new chemicals docket shows the chemical industry …<\/p>\n","protected":false},"author":100,"featured_media":0,"comment_status":"open","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"_acf_changed":false,"footnotes":""},"categories":[44,56093,56096,114108],"tags":[68,56107,56108],"coauthors":[],"class_list":["post-7261","post","type-post","status-publish","format-standard","hentry","category-policy","category-industry-influence","category-omboira","category-tsca","tag-epa","tag-lautenberg-act","tag-new-chemicals"],"acf":[],"aioseo_notices":[],"_links":{"self":[{"href":"https:\/\/blogs.edf.org\/health\/wp-json\/wp\/v2\/posts\/7261","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/blogs.edf.org\/health\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/blogs.edf.org\/health\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/blogs.edf.org\/health\/wp-json\/wp\/v2\/users\/100"}],"replies":[{"embeddable":true,"href":"https:\/\/blogs.edf.org\/health\/wp-json\/wp\/v2\/comments?post=7261"}],"version-history":[{"count":1,"href":"https:\/\/blogs.edf.org\/health\/wp-json\/wp\/v2\/posts\/7261\/revisions"}],"predecessor-version":[{"id":12819,"href":"https:\/\/blogs.edf.org\/health\/wp-json\/wp\/v2\/posts\/7261\/revisions\/12819"}],"wp:attachment":[{"href":"https:\/\/blogs.edf.org\/health\/wp-json\/wp\/v2\/media?parent=7261"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/blogs.edf.org\/health\/wp-json\/wp\/v2\/categories?post=7261"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/blogs.edf.org\/health\/wp-json\/wp\/v2\/tags?post=7261"},{"taxonomy":"author","embeddable":true,"href":"https:\/\/blogs.edf.org\/health\/wp-json\/wp\/v2\/coauthors?post=7261"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}