By Brent I. Clark, Kay R. Bonza, and Craig B. Simonsen

iStock_000011623330_MediumSeyfarth Synopsis: OSHA “strongly supports” EPA’s proposed updates to its existing regulations governing significant new uses of chemical substances under the Toxic Substances Control Act. The proposed changes seek to reconcile EPA requirements with OSHA and NIOSH requirements.

Dr. David Michaels, the Assistant Secretary of Labor for the U.S. Occupational Safety and Health Administration (OSHA), recently weighed in in favor of the U.S. Environmental Protection Agency’s (EPA) rulemaking concerning the Significant New Uses of Chemical Substances: Updates to the Hazard Communication Program and Regulatory Framework, Minor Amendments to Reporting Requirements for Premanufacture Notices. 81 Fed. Reg. 49598 (July 28, 2016).

We had blogged previously about the passage of the Frank R. Lautenberg Chemical Safety for the 21st Century Act (Chemical Safety Act). In signing the Bill on June 22, 2016, President Obama indicated that “The Frank R. Lautenberg Chemical Safety Act for the 21st Century will make it easier for the EPA to review chemicals already on the market, as well as the new chemicals our scientists and our businesses design.”

EPA’s regulations establishing workplace restrictions on the use of new chemicals had not previously considered existing OSHA controls. EPA subsequently proposed changes to its regulations governing significant new uses of chemical substances under the Toxic Substances Control Act (TSCA) to align these regulations with revisions to the OSHA Hazard Communications Standard (HCS), the OSHA Respiratory Protection Standard, and the National Institute for Occupational Safety and Health (NIOSH) respirator certification requirements pertaining to respiratory protection of workers from exposure to chemicals. EPA’s proposed changes that reference OSHA regulations include: (1) a requirement that persons subject to significant new use rules (SNURs) use engineering and administrative controls to protect workers before resorting to use of personal protective equipment, similar to OSHA’s regulation at 29 C.F.R. § 1910.134(a)(1); (2) revisions to require a written hazard communication program that includes criteria for classifying chemical hazards in each workplace, similar to OSHA’s regulation at 29 C.F.R. § 1910.1200; and (3) a requirement that any safety data sheet developed to comply with OSHA or other requirements be submitted as part of the reporting requirements under the TSCA.

Assistant Secretary Michaels commented on the record in support of the EPA’s proposed revision to 40 C.F.R. § 721.63, Protection in the Workplace, to align with the OSHA’s Respiratory Protection Standard, at 29 C.F.R. § 1910.134(a)(1)). “OSHA supports a requirement for those subject to applicable significant new use rules (SNURs) to determine and use appropriate exposure controls per the hierarchy of controls to ensure worker protection.” With regard to the respiratory protection requirements in 40 C.F.R. § 721.63, Assistant Secretary Michaels commented that “most manufacturers and processors are already subject to and complying with the most updated NIOSH regulation for testing and certifying respirators. This proposed change also achieves compliance with 29 C.F.R. § 1910.34(d)(1)(ii), OSHA’s requirement that employers select NIOSH-certified respirators for the protection of workers should respirators be necessary.” Finally, Michaels commented that the EPA’s effort to align the classification of chemical hazards with the United Nations’ Globally Harmonized System of Classification and Labelling of Chemicals, adopted by OSHA in 2012, provides “a common and coherent approach to classifying chemicals based on their hazardous properties” and will “reduce duplication in effort and burden for those subject to these requirements.”

Those in the chemical manufacturing and processing, and petroleum and coal manufacturing industries may wish to keep an eye out to see if EPA’s proposed amendments are adopted, as the new rule may ease the regulatory burden of complying with parallel EPA and OSHA regulations.

For more information on this or any related topic please contact the author, your Seyfarth attorney, or any member of the Seyfarth OSHA Compliance, Enforcement & Litigation Team or the Environmental Compliance, Enforcement & Permitting Team.