AMERICAN SOCIETY
OF SAFETY ENGINEERS
1800 East Oakton Street
Des Plaines, Illinois 60018-2187
847.699.2929
FAX 847.296.3769
www.asse.org
March 19, 2012
Document Control Office (7407M)
Office of Pollution Prevention and Toxics
Environmental Protection Agency
1200 Pennsylvania Ave., NW
Washington, DC 20460-0001
RE: ASSE Comment on Proposed Significant
New Use Rules on Certain Chemical
Substances (EPA-HQ-OPPT-2010-02790122)
To Whom It May Concern:
The American Society of Safety Engineers (ASSE) represents the interests of
34,000 safety, health and environmental (SH&E) professionals who work with
employers in every industry, every state and across the globe to help make
sure workers are able to go home safe and healthy from work each day.
Among its seventeen practice specialties, ASSE’s Environmental Practice
Specialty and Industrial Practice Specialty Hygiene especially bring together
industry leaders who manage the risks posed by chemicals in the workplace
and are at the forefront of developing ways to meet the possible risks posed by
nanotechnology and other emerging technologies.
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The following comments respond to the Environmental Protection Agency’s (EPA) Proposed
Rule Proposed Significant New Use Rules on Certain Chemical Substances (76 FR 81447;
December 28, 2011), which offers significant new use rules (SNURs) under section 5(a)(2)
of the Toxic Substances Control Act (TSCA) for 17 chemical substances subject to
premanufacture notices (PMNs). Seven of those chemical substances include the term
“carbon nanotube.” If adopted, this rule would require anyone who intends to manufacture,
import, or process any of these chemical substances for a significant new use to notify EPA
at least 90 days before beginning that activity, giving EPA an opportunity to evaluate the
intended use and to prohibit or limit that activity before it occurs if needed.
ASSE’s comments address specifically the workplace protections EPA proposes for the
seven chemical substances that include carbon nanotubes. We have members who have
extensive experience addressing the unique risks to workers that carbon nanotubes pose.
Based on these members’ views of how best to protect workers and help employers meet
their duties under the Occupational Safety and Health Act (OSH Act), ASSE is deeply
concerned with the EPA’s reliance on respiratory protection to protect workers from carbon
nanotubes and fullerenes proposed in this rulemaking.
Within each SNUR for a carbon nanotubes and fullerenes included in this proposed rule,
EPA clearly states that the substance presents unreasonable risks to human health or to the
environment, including generally pulmonary toxicity, fibrosis, carcinogenicity, mutagenicity,
and immunotoxicity. Given those risks to workers, EPA’s sole reliance on PPE for
protection against carbon nanotubes is contrary to the long-recognized understanding of good
industrial hygiene and safety practice that calls for employers to apply the hierarchy of
controls in addressing health and safety risks. An appropriate risk assessment based on the
hierarchy of controls requires that engineering controls be considered first, and if deemed
feasible, implemented before considering the use of personal protective equipment (PPE)
such as respirators, gloves and clothing. Yet, no mention is made of engineering controls in
EPA’s required protections.
Therefore, if adopted as currently written, this proposed rule will not be consistent with the
responsibilities employers must meet under the Occupational Safety and Health Act of 1970
(OSH Act), specifically the General Duty Clause [Section 5(a)], which specifies
(a) Each employer -(1) shall furnish to each of his employees employment and a
place of employment which are free from recognized hazards
that are causing or are likely to cause death or serious
physical harm to his employees;
(2) shall comply with occupational safety and health standards
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promulgated under this Act.
We urge EPA to take note of how OSHA addresses respiratory protection in requirements
our members would have to meet at the same time they meet EPA’s proposed rule, if adopted
as written. OSHA says that PPE is acceptable, but only if the employer has taken feasible
actions to protect employees, as stated. Specifically, OSHA states at 29 CFR 1910.134(a)(1)
the following:
In the control of those occupational diseases caused by breathing air
contaminated with harmful dusts, fogs, fumes, mists, gases, smokes, sprays,
or vapors, the primary objective shall be to prevent atmospheric
contamination. This shall be accomplished as far as feasible by accepted
engineering control measures (for example enclosure or confinement of the
operation, general and local exhaust ventilation and substitution of less
hazardous materials). When effective engineering are not feasible, or while
they are being instituted, appropriate respirators shall be used pursuant to
this section.
Therefore, the EPA’s proposed rule, if followed by our members, would put them in a
position of being in violation of OSHA and state-plan OSHA standards.
EPA also has neglected to consider the hierarchy of controls specified in the National
Institute for Occupational Safety and Health’s (NIOSH) June 2007 report, Progress Toward
Safe Nanotechnology in the Workplace (http://www.cdc.gov/niosh/docs/2007-123/), which
identifies a hierarchy of controls that specifies the use of engineering and administrative
controls before the use of respirators. In addition, NIOSH in its November 2010 publication,
Prevention Through Design, Plan for the National Initiative
(http://www.cdc.gov/niosh/docs/2011-121/), states in the rationale that prevention through
design (PtD)
addresses occupational safety and health needs by eliminating hazards and
minimizing risks to workers throughout the life cycle (emphasis added) of
work premises, tools, equipment, machinery, substances, and work
processes, including the construction, manufacture, use, maintenance, and
ultimate disposal or reuses.
The rationale further states that
PtD utilizes the traditional hierarchy of controls by focusing on hazard
elimination and substitution, followed by risk minimization through the
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application of engineering controls and warning systems applied during
design, redesign, and retrofit activities. However, PtD also supports the
application of administrative controls and personal protective equipment
when they supplement or complement an overall risk minimization strategy
and include appropriate program development, implementation, employee
training and surveillance.
Consistent with NIOSH’s position, the voluntary consensus standard ANSI/ASSE Z590.32011, American National Standard: Prevention Through Design: Guidelines for Addressing
Occupational Hazards and Risks in Design and Redesign Processes
(http://www.asse.org/publications/standards/z590/docs/Z590.3TechBrief9-2011.pdf), also
specifies the need for risk avoidance, elimination, reduction or control, and emphasizes that
mitigation actions through design/redesign initiatives or changes in work methods should be
implemented before incidents or exposures occur.
Against this evidence of the widest acceptance of this risk-based approach to managing
health and safety risks, the EPA’s SNURs do not even consider engineering controls.
Perhaps most difficult to understand is that the EPA has failed in this proposal to incorporate
its own recommendations for the use of engineering controls. In its February 2007
Nanotechnology White Paper (http://www.epa.gov/osa/pdfs/nanotech/epa-nanotechnologywhitepaper-0207.pdf), the EPA stated, “Engineering controls, and particularly those used for
aerosol control, should generally be effective for controlling exposure to airborne nanoscale
materials.” A rule cannot stand it if is not based on EPA’s own understanding about how to
protect workers.
In conclusion, ASSE urges the EPA to rescind its reliance on personal protective equipment,
especially respirators, in this rulemaking and revise the SNURs to mandate implementation
of feasible engineering controls in order to minimize the potential for worker exposure to
nanomaterials.
Sincerely,
Terrie S. Norris, CSP, ARM
President