Amended TSCA Brings Challenges in Compliance, Documentation
By Abby Roberts
The Toxic Substances Control Act (TSCA), as amended by the Frank R. Lautenberg Chemical Safety for the 21st Century Act, requires EPA to complete risk evaluations for chemicals designated as high priority within strict deadlines. If EPA concludes that “unreasonable risk” is associated with a chemical, it is authorized to take actions to eliminate this risk, such as by restricting the chemical’s use or manufacture. EPA found unreasonable risk for two chemicals classified as high priority, asbestos and methylene chloride: the agency has now banned all uses of asbestos and most uses of methylene chloride in the U.S. The agency will likely continue to take regulatory action in the foreseeable future, and risk evaluations for many other high-priority chemicals are in progress.
On May 21, Jason Lotter, CIH, informed attendees of an AIHA Connect educational session that companies will need to adjust to these new chemical regulations and the challenges that come with them. With Lori Zemen, CIH, he advised session attendees on chemical monitoring, risk management, and interpreting, anticipating, and preparing for significant new EPA regulations.
One way that new regulations may impact businesses is through the implementation of new occupational exposure levels. Occupational and environmental health and safety professionals typically anticipate that OELs will get lower over time, Lotter explained, but new EPA regulations may reduce by orders of magnitude OELs that have not been changed for many years. For example, OSHA’s current permissible exposure limits (PELs) for asbestos and methylene chloride are 0.1 fibers per cubic centimeter of air (f/cc) and 25 ppm. EPA’s new existing chemical exposure limits (ECELs) for these chemicals are 0.005 f/cc and 2 ppm, respectively. OEHS professionals will have to consider whether their monitoring data is still adequate to ensure compliance with new, lower OELS. They may need to implement new controls, requiring input from stakeholders such as managers and engineers. They may also need to work with laboratories to adopt new sampling approaches and methodologies, including ones imported from other countries.
Companies will have to meet new requirements for recordkeeping and documentation, including when EPA requests data during the risk determination process. “It is critical to communicate and understand the context of your exposure monitoring data,” Lotter said. Without context, EPA may struggle to interpret the data, which Lotter described as “probably not only unhelpful but a disservice to all parties.”
He stressed that understanding how EPA uses data is key. OEHS professionals usually collect data to manage risks specific to their organization’s work sites, and this data may not be representative of exposures for all workers. But EPA will use data provided by companies to characterize health risks for a range of occupational users and non-users across industries and as the basis for decisions about OEL feasibility and the need for exposure controls. Lotter recommended that OEHS professionals record trends in data over time and the groups their data represents. For example, are they characterizing the most highly exposed employees? Or are they characterizing all individuals in the facility?
Lotter cautioned that compliance with the amended TSCA will also require more recordkeeping and documentation. Currently, OEHS professionals do not document many of the decisions they make regarding control selection. For chemicals and uses that aren’t banned under new regulations, they will have to provide to EPA exposure control plans that document not only the controls their organizations have chosen to use but all available controls and rationales for not selecting the others. OEHS professionals will also have to describe how they will implement controls, how regulated areas will be demarcated and who will be permitted to enter, how they will review and update the exposure control plan, and how they will respond to additional and increased sources of exposure.
The increased recordkeeping burden may also require companies and analytical laboratories to hire more personnel, Lotter said. He advised that OEHS professionals use the new asbestos and methylene chloride regulations to prepare for future rules.
After Lotter concluded his remarks, Zemen spoke briefly on her experiences as industrial hygiene leader for Olin Chemicals, one of a handful of U.S. companies that uses asbestos diaphragms. Under EPA’s asbestos ban, Olin must convert to diaphragms that do not contain asbestos within five years.
Zemen recalled advice given to her by someone in her employer’s legal department after the asbestos ban came out: “If you’re reading these regulations, you may need to take off your IH hat at times.” That is, OEHS professionals must understand what EPA is asking for and provide those things when EPA staff visit the facility. Olin’s strategy to demonstrate compliance with the ban will involve monitoring every worker to prove they are not being exposed to asbestos and to provide extensive field notes for every monitoring sample. “Anything that we have to answer should be documented,” Zemen said. “Don’t think that when EPA comes in that it’s going to be an inspection. It’s going to be an audit.”
She also advised OEHS professionals not to shoulder the burden by themselves but to meet with other departments, such as legal and product stewardship, and to reach out to other affected companies to meet regulations as a united front. OEHS professionals can also go after “low-hanging fruit” and proactively reduce risks before new rules go into effect.
Abby Roberts is assistant editor for The Synergist.
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