Today, Maine’s legislature held a hearing on the Toxic Chemicals in the Workplace Act, a proposal to require employers to identify harmful chemicals in the workplace and replace them with safer alternatives. It’s the perfect example of state action on behalf of worker safety and exactly the kind of measure that might no longer be possible under two congressional proposals aimed at overhauling the federal Toxic Substances Control Act.
As Congress considers a number of legislative proposals to reform the 1976 Toxic Substances Control Act (TSCA) — a law that hasn’t been updated since its passage and is often described as woefully inadequate in protecting public health — worker health and safety advocates are speaking up and keeping careful watch. Reforming TSCA and strengthening the U.S. Environmental Protection Agency’s authority to restrict and ban dangerous chemicals is important for the health of all Americans, but workers could especially benefit. The metaphor of workers as society’s “canary in the coal mine” when it comes to chemical safety may be overused, but it’s still true. Occupational health and safety history is littered with examples of chemical dangers and other hazards only being noticed after workers get sick or die. And so for workers, many of who face direct exposure to chemicals in concentrated forms and on a regular, even daily, basis, TSCA reform is particularly significant.
According to OSHA, U.S. workers experience more than 190,000 illnesses and 50,000 deaths each year related to chemical exposures, which have been tied to cancers as well as lung, kidney, skin, heart, stomach, brain, nerve and reproductive diseases.
“We want EPA to specifically pay attention to worker health,” said Kevin O’Connor, director of governmental affairs and public policy at the International Association of Fire Fighters (IAFF), which represents about 86 percent of the country’s professional firefighters. “What we’re looking for is to first do no harm.”
Currently, two TSCA reform bills have been introduced in Congress — the Frank R. Lautenberg Chemical Safety for the 21st Century Act, known as S. 697, introduced by Sens. David Vitter, R-La., and Tom Udall, D-N.M., and the Alan Reinstein and Trevor Schaefer Toxic Chemical Protection Act, S. 725, introduced by Sens. Barbara Boxer, D-Calif., and Ed Markey, D-Mass. (We wrote about both bills and their differences here.) Then earlier this month, Rep. John Shimkus, R-Ill., released a draft TSCA reform proposal. Like the Vitter-Udall bill, the Shimkus proposal would significantly restrict and pre-empt state action on chemical safety — it’s a major sticking point for worker health and safety organizations. (The U.S. Senate Committee on Environment and Public Works is scheduled to mark up the Vitter-Udall bill on April 28. While some revisions have been made, advocates say it's not nearly enough to protect people's health — learn why in this letter from the Center for Environmental Health.)
According to the Center for Effective Government, the Shimkus bill could override hundreds of state chemical safety actions. Specifically, if EPA ruled that a chemical doesn’t present an “unreasonable risk,” the Shimkus bill would prohibit states from taking action on that chemical, even if the state had previously determined the chemical was a threat to people’s health or if the state is home to a particularly vulnerable population. If EPA did rule a chemical unsafe, states could only enact a restriction identical to the federal finding and no stricter. In addition, the Shimkus bill would pre-empt state action in a scenario in which EPA only assessed a chemical’s risk in a certain setting. For instance, if EPA studied a particular chemical in furniture, a state couldn’t take action on that same chemical as it’s used in children’s products.
The Vitter-Udall bill has similarly restrictive language when it comes to state authority. For example, that bill would ban states from regulating any chemical that EPA has designated as “high priority” and for which the agency has begun a safety review, even though that review could take seven years or longer. Vitter-Udall would also block states from co-enforcing EPA chemical safety restrictions — in other words, states and their residents would have to fully depend on EPA and its already strained budget to enforce chemical safety findings instead of allowing states to serve as partners in protecting people’s health. In contrast, the Boxer-Markey bill does not pre-empt state action on chemical safety.
In a letter on TSCA reform to leaders in the Senate, the AFL-CIO, which represents 12.5 million working Americans, writes:
Much of the progress that has been made in protecting the public and workers from exposures to toxic chemicals has resulted from state action. States have been at the forefront of identifying chemical hazards, providing warnings and restricting the use of toxic chemicals. State policies and actions have promoted the use of less hazardous substances, the most effective means to limit exposures. The states’ ability to take action in the future is critical for continued progress and protection of the public and workers.
Unfortunately, the Vitter-Udall and Shimkus bills jeopardize the ability to act locally on behalf of worker health and safety.
'TSCA reform can keep workers from getting sick if it’s done right'
At IAFF, O’Connor told me the firefighters association opposes any federal effort to ban state action on chemical safety, pointing to occupational exposure to flame retardants as a prime example of how local action is protecting firefighter health.
A growing body of evidence finds that firefighters are being exposed to dangerous carcinogens through the burning of household products containing chemical flame retardants. For example, this study found that firefighters have much higher levels of flame retardant chemicals in their blood than the general population. In fact, IAFF recently signed a petition calling on the federal Consumer Product Safety Commission to ban children’s products, furniture, mattresses and electronics casings that contain flame retardants within the chemical class known as organohalogens, which have been linked to cancer, learning deficits, decreased IQ in children and lowered immunity.
To protect their members against the dangerous chemicals, IAFF and its affiliates often look to local officials for help and today, states across the nation have adopted or are considering policies that restrict and regulate chemical flame retardants. For example, last year, the California Professional Firefighters — an affiliate of IAFF — advocated for and celebrated the passage of a state law requiring labels on furniture that declare whether the products contain chemical flame retardants.
O’Connor said any TSCA reform that prohibits states from acting on chemical safety would have a “chilling effect” on advocacy on behalf of firefighter health and safety. According to an IAFF database of work-related firefighter deaths, 56 percent are due to occupational cancers.
“If we put all of our eggs in the basket of the federal government, quite frankly, we’re not sure we’re protecting the best interest of our members,” he told me. “We want to make sure that a weak federal law does not pre-empt strong action on the part of states.”
At United Steelworkers (USW), the largest industrial union in North America with 850,000 members in the U.S. and Canada, workers have a huge stake in stronger chemical safety laws and the outcome of any TSCA reform. USW represents a majority of unionized chemical workers, such as those who make plastics, fertilizers, pesticides, synthetic rubbers, paints and solvents. As a co-founder of the BlueGreen Alliance, a coalition of labor and environmental organizations, USW has developed a set of principles for any TSCA reform, which includes giving EPA the authority to protect those most vulnerable to chemical safety risks, such as workers. Anna Fendley, the union’s legislative representative, told me USW is not supporting the Vitter-Udall bill in its current form, citing its state pre-emption provisions as a major problem. (Fendley also highlighted original language in the Vitter-Udall bill that would have weakened EPA’s ability to ensure that imported products don’t contain restricted chemicals; however, that language, as of late April, had been removed.)
“Ultimately, we want a federal system that works and we want the states to keep their ability to regulate safety as well,” Fendley told me. “TSCA reform can keep workers from getting sick if it’s done right.”
Fendley added that modernizing EPA’s capacity to assess chemical safety and pathways of exposure could also inform new risk reduction strategies for workers, especially for industrial processes in which there are no safer chemical alternatives.
“We’ve been working on this for many years and we really hoped that this could be the year for reform, but we’re not going to support a bill that doesn’t fix the problem,” she told me. “Workers deserve to go home from work the same way they went in — not sick and not hurt.”
Like the Vitter-Udall bill, the Shimkus proposal does not adequately define what it means for a chemical to be safe, said Charlotte Brody, vice president for occupational and public health initiatives at the BlueGreen Alliance. She told me: “The biggest thing that TSCA reform could do for workers is to ask and answer the question: Is it safe? And the Shimkus bill doesn't yet give EPA the questions to answer that would protect the health of workers or anybody else.”
Under current TSCA rules, EPA must find that a chemical presents an “unreasonable risk” to people’s health or the environment, and that assessment must also consider the benefits of the chemical in question, the availability of alternatives and the costs of restricting the chemical. The Shimkus bill would no longer require EPA to consider costs and other non-risk factors when assessing risk and would prohibit the agency from finding no unreasonable risk even if the chemical in question only presents a risk to certain groups, such as workers. But, the Shimkus draft still retains the “unreasonable risk” standard and it’s ambiguous as to how that standard would be interpreted or how cost would shape EPA’s authority to act on a finding of harm. For example, in testifying on the Shimkus draft, Andy Igrejas, director of Safer Chemicals, Healthy Families, said:
While this may seem like a fine point, it is fundamental. Stakeholders broadly agree on a risk-based system for TSCA reform. In such a system, cost considerations should be reserved for the question of how to mitigate the risk, not whether to mitigate it. As it stands, we believe the draft would allow a major risk — such as a chemical that causes cancer or birth defects — to remain unmitigated if it was deemed too expensive to do so. That is a very different outcome than mitigating the risk in a cost-effective way.
“(The Shimkus language) leaves EPA open to yet another decade of arguing what the regulations should be,” Brody told me. “What you want in (TSCA reform) is a crisp definition. Unless there’s a crisp definition, it’s not a bill you can support — it’s open to manipulation, it’s open to years of lawsuits and it’s not better than the broken law we have now.”
Today, Brody is in Maine for a public hearing on a state bill, the Toxic Chemicals in the Workplace Act. If signed into law, the bill would, among other measures, direct the state Department of Labor to develop criteria for identifying toxic chemicals and require certain employers to develop and implement alternative chemical work plans. The bill isn’t only an example of how states are stepping up to protect workers — it’s also an example of the kind of localized action and support that workers stand to lose as federal TSCA reform moves forward.
“The default is that people believe that everything on a store shelf has been reviewed for safety by some government agency,” Brody said. “They think the government makes sure there aren't dangerous products on the shelf. And it’s great that that’s the government people want — we want that too. But that’s not what we have, so we have to organize until it’s true.”
Kim Krisberg is a freelance public health writer living in Austin, Texas, and has been writing about public health for more than a decade.