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House Subcommittee Holds Hearing on “Mismanaging Chemical Risks: EPA’s Failure to Protect Workers”

On March 13, 2019, the House Energy and Commerce Subcommittee on Environment and Climate Change held a hearing on “Mismanaging Chemical Risks:  EPA’s Failure to Protect Workers.”  The hearing examined the U.S. Environmental Protection Agency’s (EPA) assessment and management of risks to workers from toxic chemicals under the Toxic Substances Control Act (TSCA) and other laws.  The Subcommittee focused on EPA’s implementation of the Frank R. Lautenberg Chemical Safety for the 21st Century Act (Lautenberg Act), particularly how it conducts risk evaluations and considers legacy uses and susceptible subpopulations, as well as how EPA has addressed specific chemicals of concern such as asbestos, chlorpyrifos, per- and polyfluoroalkyl substances (PFAS), and methylene chloride. 

Representative Paul Tonko (D-NY), Chair of the Subcommittee, began the hearing by noting that despite the authority of new TSCA, EPA has failed to protect workers.  As of December 2018, according to Tonko, EPA seems to have abandoned banning asbestos.  Tonko stated that EPA’s implementation of new TSCA has led to the systematic exclusion of risks to workers, the TSCA “framework rules” omit consideration of worker exposure, and EPA’s risk evaluation rule leaves out legacy uses.

According to Representative John Shimkus (R-IL), Ranking Member of the Subcommittee, Congress may need to examine the overlap between the U.S. Occupational Safety and Health Administration (OSHA) and EPA and their responsibilities.  The Lautenberg Act focused only on EPA’s responsibilities.  Congress needs to ensure that new chemicals are vetted effectively because they may be better and safer than existing chemicals.  Shimkus concluded that, almost two years after the enactment of the Lautenberg Act, now is the right time to have a hearing, and hopefully Congress will have more.

Representative Frank Pallone, Jr. (D-NJ), Chair of the House Committee on Energy and Commerce, stated that one of the most important protections in the Lautenberg Act was the new requirement that EPA protect vulnerable populations, including workers.  Pallone criticized EPA’s asbestos risk evaluation, stating that it ignores legacy uses.  To ensure that the public will be protected from asbestos, on March 7, 2019, Pallone introduced the Alan Reinstein Ban Asbestos Now Act of 2019 (H.R. 1603), to amend TSCA to prohibit the manufacture, processing, and distribution in commerce of asbestos and asbestos-containing mixtures and articles.  Pallone expressed hope that Congress can work together in a bipartisan way to protect workers.

The Subcommittee heard from the following witnesses:

  • Jeaneen McGinnis, Benefits Representative, United Auto Workers, written testimony;

  • Patrick Morrison, Assistant to the General President for Health, Safety, and Medicine, International Association of Firefighters, written testimony;

  • Tom Grumbles, CIH, FAIHA, Former President, American Industrial Hygiene Association (AIHA), Past President, Product Stewardship Society, on behalf of AIHA, written testimony;

  • Adam Finkel, Sc.D., CIH, Clinical Professor of Environmental Health Sciences, University of Michigan School of Public Health, written testimony.

McGinnis testified that chemicals must be tested before manufacturers commit to using them in the workplace and that implementation of the Lautenberg Act must be a priority.  Morrison stated that he was pleased that EPA selected asbestos and hexabromocyclododecane (HBCD), a flame retardant, as two of the first ten chemicals selected for risk evaluation.  Morrison described the risks that fire fighters face from chemicals present in building materials, such as asbestos and HBCD.  Morrison noted that despite the risks that asbestos poses to fire fighters, EPA failed to include fire fighters as a susceptible subpopulation in its problem formulation document.  EPA’s problem formulation document for HCBD was more general.  According to Morrison, under new TSCA, EPA must evaluate chemicals throughout their entire lifecycle.  Removing legacy uses from review will skew results, particularly as they relate to workers.  While Congress recently noted the dangers associated with PFAS, which are used in firefighting foams, there are still existing stocks of these foams in use.

Hutchison testified regarding asbestos removal in Baltimore schools, as well as teachers and students who may be exposed to asbestos in schools where it has not yet been remediated.  She also described the presence of lead in the drinking water in Baltimore schools, noting that as the school district improves school buildings, it installs water filtration systems or upgraded plumbing.  Older schools rely on bottled water, however.

Kashkooli highlighted that farm workers are excluded from OSHA oversight and that EPA is the only agency responsible for farm worker safety and health through its regulation of pesticides.  He noted the bipartisan support of congress for protecting farm workers as evidenced in its passage of the Pesticide Registration Improvement Extension Act of 2018 (S. 483) (PRIA 4), which addressed worker protection matters.  Kashkooli asked that PRIA 4 be enforced and that Congress support the Ban Toxic Pesticides Act of 2019 (H.R. 230), which would ban the use of chlorpyrifos.

Grumbles addressed the misperception that safety data sheets (SDS) are not followed by employers.  According to Grumbles, when an employer receives an SDS, it develops a hazard assessment that informs the need for additional training, workplace labeling, changes in standard operating procedures, additional engineering controls, and personal protection equipment (PPE).  Grumbles stated that SDSs have improved dramatically since OSHA implemented revisions to the Hazard Communication Standard (HCS) that include the use of the Globally Harmonized System for Classification and Labeling (GHS) to drive content and format, hazard classification, and hazard communication through labels and symbols.

Duvall testified that the Lautenberg Act made worker protection an even higher priority for EPA by requiring it to consider potentially exposed or susceptible subpopulations, which include workers, when making determinations concerning risk.  Once EPA makes a risk determination, it must take steps to protect potentially exposed or susceptible subpopulations in light of the applicable conditions of use.  Regarding new chemicals, Duvall stated that EPA has always made and continues to make worker protection one of its key considerations.  Since enactment of the Lautenberg Act through February 10, 2019, EPA has made 564 final determinations for premanufacture notification (PMN) substances, not including PMNs that were invalid or withdrawn.  According to Duvall, EPA issued TSCA Section 5(e) or 5(f) orders restricting 441 of those substances, or 78 percent, and many of these orders include worker protection requirements.  For 123 substances, EPA determined that the PMN substance is not likely to present an unreasonable risk.

Finkel testified that EPA should begin its risk assessment and management in the workplace because that is where the risk begins.  According to Finkel, the EPA Administrator has complete discretion to decide when to confer with OSHA, and suggesting that EPA consult with OSHA before taking risk reduction measures will only delay protections.  Finkel stated that he thinks EPA’s forthcoming methylene chloride rule will not adequately protect workers as, rather than a targeted ban on commercial uses, it will initiate a process leading to a “training, certification and limited access program,” an approach rejected in the proposed rule.  He also stated that the rule will not protect consumers if small containers will still be available.

During questions from Committee and Subcommittee members, several of the witnesses reiterated that EPA is not doing enough to protect workers through its risk evaluation process.  According to Finkel, when considering worker exposure, noncompliance with PPE requirements is the definition of a reasonably foreseeable risk.  Morrison suggested that EPA misunderstands their occupation and how fire fighters are exposed to asbestos.  Duvall stated that while EPA and OSHA meet monthly to discuss process safety issues, they reportedly have met “several times” to discuss TSCA issues, and the agencies should be encouraged to develop a more regular and transparent line of communication.  Other questions from Subcommittee members also explored the need for more constructive engagement between EPA and OSHA.  Grumbles noted that development by OSHA of permissible exposure limits (PEL) has been a struggle and that OSHA needs to find a better way to protect workers from chemical risks.  He also noted that EPA’s new chemicals process included a document that describes EPA’s approach to developing new chemical exposure limits (NCEL) that are comparable to PELs, but he is not sure if it is sufficiently detailed and transparent.

Commentary 

This hearing was the opening gun for what is likely to be continuing oversight in the House of EPA’s implementation of amended TSCA.  The hearing signals that this oversight will focus on EPA’s perceived failure to implement TSCA as understood by the majority.  The hearing produced some areas of agreement, for example, that the respective roles of EPA and OSHA in the occupational arena are clear, that OSHA should do more but that this is a difficult challenge for several reasons, and that EPA and OSHA should generally work together more closely and more transparently.  The point was also made that EPA and OSHA officials need to be brought into the debate and that both agencies should be fully funded. 

The discussion ranged widely across TSCA, the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) (particularly chlorpyrifos), the Clean Air Act, the Occupational Safety and Health Act, and others.  At the same time, none of the majority witnesses brought a working knowledge of TSCA and how it operates in practice with the result that when TSCA-related questions were asked of them by the majority members, many struggled to respond.  There also seemed to be a dearth of minority members at the hearing (the point was made that other House activities were underway in parallel) and, for a while towards the end of the hearing, all of the questions came from the majority.

At the close of the hearing, Subcommittee Chair Tonko identified a series of submissions for the record including from Alexandra Dapolito Dunn, Assistant Administrator of EPA's Office of Chemical Safety and Pollution Prevention (OCSPP), numerous environmental and public health interest groups (both national and local groups), unions, the recent U.S. Government Accountability Office (GAO) report on TSCA implementation, several from pesticide industry groups, and one from the TSCA New Chemical Coalition (NCC).  We did not note any other submissions from industrial chemical industry groups.  The statements for the record will be available on the hearing website in the coming days once Committee staff have had a chance to go through them.  While we recognize that this is only the start of an oversight process, it is our hope that industry groups will in the future be more demonstrative in sharing their views on these critically important TSCA implementation issues than what Mr. Tonko reported today.

©2019 Bergeson & Campbell, P.C.

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