In June, President Obama signed the Frank R. Lautenberg Chemical Safety for the 21st Century Act to help the EPA regulate chemicals more effectively. By strengthening the Toxic Substances Control Act (TSCA) of 1976, the bill revises the process and requirements for evaluating and determining whether regulatory control of a chemical is warranted.
While legislation of this scope can affect businesses in almost every industry, those in environmental, health and safety (EHS) anticipate a significant impact to the construction sector in particular, where many of the chemicals expected to be on the EPA’s initial list for review are commonly used in insulations, paints, coatings and other building materials. That said, it is critical that construction leaders not only understand what the TSCA reform changes are, but also take steps now to ensure they are ready for any new chemical regulations or bans down the line.
A New Era of Chemical Control
Until now, the TSCA permitted the use of approximately 64,000 chemicals without any safety review, and allowed an estimated 700 to 1,000 new, untested chemicals into the market each year. The Lautenberg Act, though, requires the EPA to not only begin evaluating the safety of all new chemicals, but also develop a priority list of existing chemicals to begin testing. Among the highest priority of existing chemicals the EPA will test are those which present a high risk for water contamination and those that are known carcinogens.
As a first step under the new reform, the EPA is required to establish a risk-based process to determine which chemicals it will prioritize for assessment, identifying them as either “high” or low” priority substances. Once a chemical receives a high priority designation, the EPA is required to complete a risk evaluation to determine its safety within a designated timeline. These chemicals will then be evaluated against a new, risk-based safety standard to determine whether its use poses an “unreasonable risk.”
When an unreasonable risk is identified, the EPA must take final risk management action within 2 years, or up to 4 years if an extension is needed. During this process, costs and the availability of alternatives will be considered in the EPA’s determination of the appropriate action to take to address the risks. Any action, including bans and phase-outs, must commence as quickly as possible but occur no later than 5 years after the final risk management process began.
While many believe it could take years or perhaps decades for the agency to complete even a small portion of the overdue assessments, it’s important for hazardous chemical users to recognize that the EPA is already taking initial steps in the process, and to begin preparing for any fallout from its findings. The EPA has already begun holding meetings to obtain input from the public on the processes it will use to prioritize and evaluate chemicals. The input obtained during these meetings will be considered as the EPA develops its proposed procedural regulations for risk evaluation and chemical prioritization.
The 5 Most Likely
Under the TSCA reform, thousands of chemicals that have long been known to be highly hazardous will now be up for review by the EPA. Some of the biggest targets on the agency’s chemical hit list are common in the construction industry, including the following most believed to be included in the first review cycle:
- Asbestos—While banned by the EPA in 1989, an appeals court overturned the ban in 1991 allowing thousands of building products such as joint compound, floor tile, cement board, pipes and shingles to still contain asbestos fibers. Studies have shown that exposure to asbestos can cause mesothelioma, a serious form of cancer and other pulmonary diseases.
- Formaldehyde—A known human carcinogen according to the World Health Organization (WHO) and an irritant to the mucus membranes, formaldehyde was grandfathered in under TSCA’s original 1976 version, and as a result, has never been subject to a full EPA assessment. Endemic in building materials, formaldehyde makes up polymers used in the manufacture of plywood and carpeting. Formaldehyde resins are also important to the manufacture of paper products and polyurethane foam insulations. Long-term exposure to low levels in the air or on the skin can cause asthma-like respiratory problems and skin irritation such as dermatitis and itching.
- Diisocyanates—In use since the late 1940s, diisocyanates are a family of chemical building blocks mainly used to make polyurethane products, such as rigid and flexible foams, coatings, adhesives, sealants and elastomers. Occupational risk and exposure is limited to those who come into contact with the chemical in its vapor or liquid form during the production of byproducts. While the chemical itself does not pose a direct risk to those in the construction industry, polyurethane foam building insulations, paints and coatings, and other products are likely to be heavily regulated or eliminated as the result of a TSCA review.
- Flame Retardants—A term used to describe a cluster of chemicals that inhibit the ignition or spread of fire. Halogenated flame retardants are related to PCBs, and have been linked to developmental difficulties in children, endocrine disruption, birth defects and cancer. Flame retardants are primarily used in thermal insulation boards in the building and construction industry, and are also found in many textiles.
- Silica—Silica has been in the headlines lately due OSHA regulations regarding the risks related to its dust inhalation. When inhaled, these respirable dust particles can penetrate deep into the lungs and cause disabling and sometimes fatal lung diseases, including silicosis and lung cancer, as well as kidney disease. Concrete, bricks and glass often contain silica, and OSHA regulates Permissible Exposure Limits (PELs) for dust. More stringent restrictions could be on the way if EPA conducts an assessment of silica and its uses.
Ushering Changes for Construction
While any changes are likely to proceed slowly in the current political climate, you should still be prepared for the EPA to ban chemicals found in commonly used construction products. In TSCA’s 40-year history, only a handful of the tens of thousands of chemicals on the market when the law passed, have ever been reviewed for health impacts, and only five have ever been banned. The amendments to TSCA—backed by bipartisan support—aim to drastically change this. The new law requires the EPA to identify its list of “10 TSCA Work Plan Chemicals” and formally initiate risk evaluations by mid-December 2016, and release the scope of each assessment by mid-June 2017.
The first step in preparing for EPA-banned substances is to take a look at the products and chemicals you are currently using. Be prepared to either find replacement products for any of the highly hazardous materials currently in use, or to begin training employees on how to use these chemicals with greater care. A good chemical management software solution can help simplify this process, allowing companies to easily identify exactly which chemicals are where, and minimize any potential threat they present to worker safety or the environment.
Because the safety data sheets (SDSs) of EPA at-risk chemicals will also need to be updated with any new hazard information, this is also a good time to make sure you have the most up-to-date documents for the chemicals currently used on your jobsites. SDSs of EPA at-risk chemicals will need to be updated with any new hazard information, so identifying the most recent documents will help with swapping out older SDSs with updated documents as they become available. Remember, updated SDSs are only required to arrive with the first shipment or the shipment after a change has been made; after that, it’s up to you to locate the new document. Chemical management software with mobile inventory management capabilities can help streamline your audit process, allowing site managers to locate and update these chemicals more quickly and efficiently.
Make no mistake, if the EPA reviews a fraction of its most-questioned chemicals, changes will be on the way that will affect what materials can and can’t be used in construction, how those items and chemicals must be handled, what regulatory requirements will be in place for each, and how much it will cost to comply. The time is now to begin taking steps to ensure you’re prepared.