B&C Memorandum Quoted In Inside EPA Article “Attorneys Say EPA SNUR Aligning Protection With OSHA May Exceed TSCA”

On August 4, 2016, quotes from the Bergeson & Campbell P.C. (B&C^®) memorandum “TSCA: Proposed Revisions to Significant New Use Rules Reflect Current Occupational Safety and Health Standards” were included in an Inside EPA article about conflicts between Occupational Safety and Health Administration (OSHA) and the revised Toxic Substances Control Act (TSCA).

A law firm that frequently represents industry clients is warning that a recently proposed rule that seeks to align EPA requirements for new uses of industrial chemicals with strict Occupational Safety and Health Administration (OSHA) measures may be at odds with the recently revised Toxic Substances Control Act (TSCA).

Bergeson & Campbell, in a July 29 memo to clients, identifies “several issues” with EPA’s July 28 proposed package of significant new use rules (SNURs), including that Congress did not address the “hierarchy of controls” (HOC) approach to engineered and other protections for workers that the agency is proposing to adopt.

“Congress decided in its wisdom not to include the concept of HOC in TSCA as amended,” the firm’s memo says. “The re-emergence of HOC embedded in a proposed rule issued with no fanfare, and which studiously avoids reference to any of these important implications, raises many questions, not the least of which is if Congress declined to pursue this approach in amending TSCA, is it at least worth discussing the wisdom of its inclusion in this proposed rule?”

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But the law firm’s memo questions why Congress did not authorize the HOC approach when it revised TSCA earlier this year. While the firm recognizes “the importance” of the HOC approach, it notes that lawmakers had considered backing the approach in some early legislative proposals but the language did not make it into the final legislation. “We . . . question why, after an extensive legislative debate that produced an amended TSCA, EPA would propose to include the [HOC] approach in its significant new use provisions,” the memo says.

Bergeson & Campbell in its memo also questions whether EPA’s rule writers “considered the impact of amended TSCA on the proposal. Based on a quick read, we note the citations to TSCA appear to be to old TSCA. Apart from correcting the citations, however, new TSCA may materially impact the content of the proposal and it is unclear if EPA’s review considered this possibility.”

The memo also points to the experiences of EPA’s pesticides office and pesticide industry stakeholders trying to adopt GHS. EPA has moved more quickly to adopt these new standards with regard to pesticides than industrial chemicals controlled by TSCA. The firm’s memo notes that “stakeholders in the pesticide area know well the challenges and legal and regulatory ambiguities that have arisen regarding EPA’s efforts to align pesticide labeling under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) with GHS requirements. EPA has devoted considerable effort to clarifying the application of HCS/GHS requirements to FIFRA labeling, and unresolved issues still remain.”

In a separate July 29 article in the National Law Review, Lynn Bergeson, managing partner with the firm, and colleague Carla Hutton say, “manufacturers of new nanomaterials should implement a hierarchy of controls whenever possible,” given EPA’s new rule proposal.