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EPA Approves 1-Bromopropane For Use in the Workplace

EPA Approves 1-Bromopropane For Use in the Workplace

 

Written by Taher Kameli & Chathan Vemuri

The Environmental Protection Agency (EPA) conducted a final risk evaluation on the substance 1-Bromopropane (1-BP), as per the Toxic Substances Control Act.[1] It sought to inquire about the safety of 1-BP for general use and the environment.[2]  On August 11, 2020, the Environmental Protection Agency (EPA) released this report.[3] Although it found that 16 out of 25 conditions of use presented an unreasonable risk to workers, occupational non-users, consumers and bystanders, the EPA still found that none of these conditions made 1-BP pose any unreasonable environmental risk or risk to the general population.[4] This finding, which was made under the Trump-led EPA, has generated controversy surrounding its approach and the lacunae it may leave unaddressed in terms of potential risks 1-BP may pose to groups such as children and workers.[5]

 

The Toxic Substances Control Act of 1976 is the enabling act that allows the EPA to review and regulate chemical substances and mixtures that present an unreasonable risk of injury to human health or to the environment.[6] This law was substantially amended and updated in 2016 by the Frank R. Lautenberg Chemical Safety for the 21st Century Act which was passed by the Obama Administration, which changed the rigor of the TSCA’s level of regulation in important ways, such as imposing a mandatory duty on the EPA to evaluate existing chemicals with set deadlines, assessing chemicals against risk-based safety standards, and eliminating unreasonable risks found in risk evaluations.[7] Whereas the previous version of the Act created no duty to review dangerous substances, set no sense of accountability regarding ensuring safety and left entire risks unaddressed due to cost/benefit considerations as well as tying down testing of chemicals in a lengthy rulemaking process, the new Act created a comprehensive review process for addressing the potential threats posed by chemicals, added clear guidelines for ensuring accountability of industry and commercial approaches to certain chemical substances and more rigorously monitoring their risks and dangers.[8]

 

A key addition to the EPA’s obligations under the Chemical Safety for the 21st Century amendment to the TSCA is the added responsibility of preventing chemical risks to workers. Under the newly amended act, the EPA must rigorously evaluate substances risk to “potentially exposed or susceptible subpopulation(s)” which is defined as “a group of individuals within the general population identified by the Administrator who, due to either greater susceptibility or greater exposure, may be at greater risk than the general population of adverse health effects from exposure to a chemical substance or mixture, such as…workers…”[9] Other provisions of the amended Act provide for exposure studies that would include surveillance and intervention capability to identify and prevent hazardous exposures to workers in lead abatement and assessments of potential risks of exposure of lead to janitorial and custodial workers; education about implementation of regulations of response actions to hazardous exposure to workers; accreditation of training programs for workers involved in lead-based paint work; and grants for operating health and safety asbestos training and education programs for asbestos workers engaged in asbestos-related activities.[10] Thus it is clear that one of the key thrusts of the amended TSCA of 2016 is to both assess and prevent risks to workers.[11] Furthermore,

 

The chemical in question with regards to the new risk evaluation, 1-bromopropane, is an organobromine compound in the form of a colorless liquid. It is used as a solvent in commercial and industrial applications as well as a reactant in the manufacturing of other chemical substances.[12] Common commercial/industrial uses include vapor degreasing and dry cleaning, as well as a substance in spot cleaners, stain removers, adhesives, and automobile care products.[13]

 

Yet whether the new risk evaluation actually ensures protections for workers as per the new Act is questionable. Although the final risk report acknowledged that the chemical solvent formed an unreasonable risk to the human health of workers both from short and long term inhalation as well as from various commercial uses, it nevertheless found that conditions of use of 1-BP relating to common tasks of the workforce did not present an unreasonable risk to worker health.[14] These included manufacturing, processing with regards to incorporating it into articles, repacking and recycling, distribution in relation to commerce and in use of building and construction materials, as well as disposal.[15] This is in direct contravention of the amended TSCA Act which specifically looks for action relating to substances that pose greater risk to certain parts of the population due to increased exposure or use such as workers. The Environmental Defense Fund accused the EPA risk assessment, carried out by an EPA seen as deferential to the Trump administration, of understating the risk of 1-BP to workers and callously assuming that all workers will have access to effective protective equipment and using lax cancer risk benchmarks.[16]

By finding no unreasonable risk with regards to common actions in the work force where 1-BP is used, the EPA is undermining the purpose of the 2016 Chemical Safety of the 21st Century Amendment to the TSCA Act which was to make the EPA more effective by actually  eliminating unreasonable risks identified in risk evaluations. This report identified 16 conditions of use that posed unreasonable risks to workers and yet proceeded to permit continued use in the work force, assuming common protections that are far from universal to the work force. This potentially endangers the lives of thousands, if not millions of workers who already are under stress of increased work hours and exposure to hazardous work spaces due to the increased demands stemming from COVID-19-related quarantine. And even if a State were to find a chemical dangerous and regulate it for its risks to workers, under the new Amendment, the EPA finding would pre-empt the State law through its risk evaluation or taking a final action addressing the risks of a particular chemical.[17]

 

If you are a member of the workforce and feel that you may be at increased risk of exposure to 1-BP given the industry that you are involved and you have increased work hours, we encourage you to contact an expert employment lawyer. Alternatively, if you are an employer and are concerned about meeting ensuring proper work conditions for your work staff under EPA guidelines, an expert employment lawyer can help you determine what those are and how to best lookout for your workforce, especially during this unprecedented stressful time around the world. The Law Offices of Kameli & Associates P.C. is committed to providing quality legal services to ensure the safety and health of the workers in the workforce as well as help employers avoid litigation by providing legal counsel that minimizes the risk of litigation and ensures compliance with workplace policies and federal standards that benefit both employers and employees.

 

 

[1] U.S. Environmental Protection Agency, Final Risk Evaluation 1-Bromopropane (2020).

[2] Id.

[3] EPA Publishes Final Risk Evaluation For 1-BP, NAT’L LAW REV. Vol. X, 225 (Aug. 12, 2020).

[4] Id.

[5] Richard Denison, EPA Flouts the Law, Science and Its Obligation to Protect Public Health Yet Again: The 1-Bromopropane Final Risk Evaluation, Environmental Defense Fund, (Aug. 11, 2020).

[6] Toxic Substances Control Act and Workers Health, Center for Disease Control and Prevention (Last Viewed Feb. 10, 2017).

[7] Id.

[8] https://www.lcsact.com/wp-content/uploads/2017/10/ACC_LautenbergChemicalRegulatoryProcess_FINAL-09-15-2016.pdf;

https://www.lcsact.com/wp-content/uploads/2017/12/LCSA-Learn-More.pdf

[9] 15 U.S.C. §2602(12) (The Act also lists other at-risk groups such as infants, children, pregnant women and the elderly.)

[10] 15 U.S.C. §2685(c)(2)(A)(E); §2643(e); §2682(a)(2); and §2656(a).

[11] Toxic Substances Control Act and Workers Health, Center for Disease Control and Prevention (Last Viewed Feb. 10, 2017).

[12] EPA Publishes Final Risk Evaluation For 1-BP, NAT’L LAW REV. Vol. X, 225 (Aug. 12, 2020).

[13] Id.

[14] Id.

[15] Id.

[16] Richard Denison, EPA Flouts the Law, Science and Its Obligation to Protect Public Health Yet Again: The 1-Bromopropane Final Risk Evaluation, Environmental Defense Fund, (Aug. 11, 2020).

[17] U.S. Environmental Protection Agency, Highlights of Key Provisions in the Frank R. Lautenberg Chemical Safety for the 21st Century Act (2020).