{"id":8575,"date":"2019-03-15T10:54:11","date_gmt":"2019-03-15T15:54:11","guid":{"rendered":"http:\/\/blogs.edf.org\/health\/?p=8575"},"modified":"2024-02-12T11:02:16","modified_gmt":"2024-02-12T16:02:16","slug":"busting-industry-perpetrated-myths-about-new-chemicals-and-worker-protection-under-tsca","status":"publish","type":"post","link":"https:\/\/blogs.edf.org\/health\/2019\/03\/15\/busting-industry-perpetrated-myths-about-new-chemicals-and-worker-protection-under-tsca\/","title":{"rendered":"PART 1: Busting industry-perpetrated myths about new chemicals and worker protection under TSCA"},"content":{"rendered":"

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

Part 1\u00a0 \u00a0 \u00a0 \u00a0 \u00a0 Part 2<\/a>\u00a0 \u00a0 \u00a0 \u00a0 \u00a0Part 3<\/a><\/p>\n

This week the House Energy & Commerce Committee held a hearing on EPA\u2019s failures to protect workers from chemical risks<\/a>.\u00a0 It featured a number of compelling testimonies from worker representatives:\u00a0 auto workers, firefighters, teachers, and farmworkers.\u00a0 It also featured testimony from a former Occupational Safety and Health Administration (OSHA) official, who made the case for why it is so critical that the Environmental Protection Agency (EPA) comply with the mandates and use the enhanced authorities Congress gave the agency under the Toxic Substances Control Act (TSCA) to protect workers exposed to chemicals.\u00a0 He detailed why OSHA is unable to do so, describing OSHA as \u201coutmatched\u201d and having \u201cexhausted its capacity\u201d in the face of decades of severe budget cuts and limited legal authority.[pullquote]The chemical industry is perpetuating damaging myths about worker protection at EPA and OSHA, which have unfortunately taken a firm hold in the Trump EPA<\/em>.<\/strong>[\/pullquote]<\/p>\n

Unfortunately, the hearing also included testimonies from two chemical industry representatives who painted a highly deceptive picture of what EPA has done to protect workers under the new TSCA and the adequacy of OSHA regulations regarding chemical risks in the workplace and the extent of compliance with them.\u00a0 This and future posts will address the damaging myths these witnesses are perpetuating, which have unfortunately taken a firm hold in the Trump EPA<\/a>.<\/p>\n

Myth #1:\u00a0 EPA is committed to protecting workers when reviewing new chemicals under TSCA.\u00a0\u00a0<\/em><\/strong><\/p>\n

One of the industry witnesses was Beveridge & Diamond\u2019s Mark Duvall, currently a primary outside counsel to the chemical industry\u2019s main trade association, the American Chemistry Council (ACC), and before that a longtime Dow Chemical attorney.\u00a0 In his testimony, Duvall asserted EPA is thoroughly protecting workers when reviewing new chemicals.\u00a0 As support, he presented a wholly misleading set of statistics on how many of EPA\u2019s decisions on new chemicals have included worker protections since the 2016 amendments to TSCA.\u00a0 Based on this, he concluded that \u201calmost 4 out every 5 PMN [premanufacture notification] substances that receive a final determination are regulated.\u201d<\/p>\n

Manipulating statistics on EPA new chemical decisions<\/strong>:\u00a0 What Duvall failed entirely to mention, however, is that his statistics lump together decisions on new chemicals EPA made during the first period after passage of the new TSCA<\/a> \u2013 when it was largely complying with the new law\u2019s legal requirements \u2013 and the more recent decisions it has made under new, still not public, policies that made radical changes<\/a> in the agency\u2019s approach to reviewing new chemicals.\u00a0 Decisions under the new approaches began to issue in late July 2018; we blogged extensively<\/a> at the time about the first of these.<\/p>\n

We have tracked each decision EPA has made since late July 2018, and in a recent blog post we noted how many of these decisions are throwing workers under the bus<\/a>, allowing unfettered market access to chemicals even where EPA has identified serious potential risks to workers.\u00a0 As explained in our earlier blog post, EPA relied on ineffective, nonbinding documents to \u201cexpect\u201d those risks out of existence.<\/p>\n

Here is the breakdown of EPA\u2019s decisions since the dramatic shift in its policies:\u00a0 Of the 75 premanufacture notifications (PMNs) on which EPA has made final determinations using the new policies since late July 2018, 62 of them have asserted that the new chemical is \u201cnot likely to present an unreasonable risk.\u201d\u00a0 That means that over the last seven and a half months EPA has green-lighted without regulation 83% of the new chemicals subject to its new policies \u2013 a complete reversal from what Duvall claimed in his testimony.<\/em><\/strong><\/p>\n

Duvall\u2019s omission of any mention of this critical distinction and wholesale reversal by EPA drastically misrepresented the current situation and borders on the dishonest.<\/p>\n

Masking his and his clients\u2019 relentless push for EPA to rely on purely voluntary workplace protections<\/strong>:\u00a0 Duvall\u2019s effort to blur the distinction I just described is both ironic and the height of hypocrisy.\u00a0 First, Duvall knows full well that EPA reversed course because of relentless chemical industry pressure<\/a> demanding that EPA stop regulating so many new chemicals under TSCA.\u00a0 Yet now he seeks to laud and take credit for EPA\u2019s initial, relatively heavy regulation of new chemicals in order to assert that the Trump EPA is committed to and is protecting workers.<\/p>\n

Touting EPA\u2019s past imposition of mandatory workplace controls he and his clients oppose<\/strong>:\u00a0 Second, Duvall\u2019s testimony provides statistics on how often EPA has imposed worker protection requirements for various categories of EPA decisions.\u00a0 For example, he says that most consent orders<\/em> EPA has issued include \u201cworker protection requirements.\u201d\u00a0 He also discusses EPA\u2019s use of significant new use rules (SNURs)<\/em> to extend the reach of those consent orders, noting (emphases added):<\/p>\n

Over the years, EPA has adopted 463 final SNURs that incorporate by reference worker protection provisions listed in 40 C.F.R. \u00a7 721.63<\/em>, such as particular kinds of respirators, gloves, and protective clothing. In these SNURs, EPA has supplemented applicable OSHA requirements<\/em> to mandate particular kinds of respirators and protective clothing. In some cases, it has set exposure limits and related monitoring requirements if companies can establish that exposure levels are low enough that respirators are not necessary.<\/p>\n

EPA has adopted 404 final SNURs that incorporate by reference hazard communication requirements listed in 40 C.F.R. \u00a7 721.72<\/em>. In these SNURs, EPA has gone beyond OSHA’s general hazard communication standard<\/em> to mandate identification of particular hazards and protective measures.<\/p>\n

So, let\u2019s get this straight.\u00a0 Duvall cites these statistics to demonstrate how often EPA has imposed workplace protections through consent orders and SNURs \u2013 the very instruments EPA has all but stopped issuing under its new policies.\u00a0 He fails to acknowledge that both were largely abandoned in direct response to the chemical industry\u2019s loud complaints to EPA that it doesn\u2019t like consent orders and SNURs<\/a>.\u00a0 Duvall himself co-authored comments<\/a> submitted to EPA by ACC conveying those complaints.<\/p>\n

He then glosses over the fact that it is only through the use of such instruments that EPA can<\/em> impose binding requirements for companies to employ worker protection and hazard communication measures or, in the case of SNURs, to require notification to EPA of any intent to depart from them.\u00a0 If EPA only issues a \u201cnot likely\u201d finding \u2013 as it is now routinely doing \u2013 any such measures are purely voluntary.<\/p>\n

The regulatory provisions Duvall cites in the excerpt above are incorporated into EPA\u2019s general SNUR regulations, so that EPA need only cross-reference them when issuing a SNUR.\u00a0 Adding to the irony of his citing these regulations, Duvall notes (see the emphases in the excerpt above) that these provisions go beyond OSHA requirements.\u00a0 Yet he, his industry clients, and others in the industry <\/a>are not only calling on EPA to abandon these binding instruments, but also to defer to OSHA requirements or to instead rely on Safety Data Sheets \u2013 documents called for by OSHA regulations but that do not impose any binding requirements on employers to actually protect their workers.<\/p>\n

It should be noted that in a handful of recent cases where EPA issued a \u201cnot likely to present an unreasonable risk\u201d determination, EPA also proposed a SNUR for the same substance.\u00a0 However, in a striking departure from most of the SNURs EPA has issued in the past, these new proposed SNURs do not<\/em> incorporate the worker protection and hazard communication requirements that Duvall cites to support his contention that EPA adequately protects workers.\u00a0 In other words, not only did these chemicals get unfettered market access because of their \u201cnot likely\u201d determinations, in issuing proposed SNURs for these chemicals EPA opted not to impose any of the binding requirements for \u201cprotection in the workplace\u201d or \u201chazard communication\u201d available to it in its general SNUR regulations.<\/p>\n

In my next post, I\u2019ll delve into a second industry-perpetrated myth espoused by both Duvall and the other industry witness at this week\u2019s hearing:\u00a0 That OSHA regulations already provide ample protection to workers from chemical risks.<\/p>\n

 <\/p>\n","protected":false},"excerpt":{"rendered":"

Richard Denison, Ph.D.,\u00a0is a Lead Senior Scientist. Part 1\u00a0 \u00a0 \u00a0 \u00a0 \u00a0 Part 2\u00a0 \u00a0 \u00a0 \u00a0 \u00a0Part 3 This week the House Energy & Commerce Committee held a hearing on EPA\u2019s failures to protect workers from chemical risks.\u00a0 It featured a number of compelling testimonies from worker representatives:\u00a0 auto workers, firefighters, teachers, and …<\/p>\n","protected":false},"author":100,"featured_media":8580,"comment_status":"open","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"_acf_changed":false,"footnotes":""},"categories":[44,56093,56096,114108,77],"tags":[68,56107,113921,56108,39178],"coauthors":[],"class_list":["post-8575","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-policy","category-industry-influence","category-omboira","category-tsca","category-worker-safety","tag-epa","tag-lautenberg-act","tag-myth-busting","tag-new-chemicals","tag-significant-new-use-rule-snur"],"acf":[],"aioseo_notices":[],"_links":{"self":[{"href":"https:\/\/blogs.edf.org\/health\/wp-json\/wp\/v2\/posts\/8575","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=8575"}],"version-history":[{"count":1,"href":"https:\/\/blogs.edf.org\/health\/wp-json\/wp\/v2\/posts\/8575\/revisions"}],"predecessor-version":[{"id":12867,"href":"https:\/\/blogs.edf.org\/health\/wp-json\/wp\/v2\/posts\/8575\/revisions\/12867"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/blogs.edf.org\/health\/wp-json\/wp\/v2\/media\/8580"}],"wp:attachment":[{"href":"https:\/\/blogs.edf.org\/health\/wp-json\/wp\/v2\/media?parent=8575"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/blogs.edf.org\/health\/wp-json\/wp\/v2\/categories?post=8575"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/blogs.edf.org\/health\/wp-json\/wp\/v2\/tags?post=8575"},{"taxonomy":"author","embeddable":true,"href":"https:\/\/blogs.edf.org\/health\/wp-json\/wp\/v2\/coauthors?post=8575"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}