Pursuing any of the strategies outlined in Section One requires a thorough understanding of the relevant laws, regulatory programs, and government institutions that are intended to protect workers’ rights. What follows is a summary of eight federal laws that directly or indirectly address occupational exposure to toxic chemicals.
The Occupational Safety and Health Act (OSH Act) of 1970 is the primary federal law addressing workplace health and safety, and it authorizes the Occupational Safety and Health Administration (OSHA) to adopt standards to address significant workplace hazards, including toxic substances. The Mine Safety and Health Administration (MSHA) addresses mine worker health and safety but is beyond the scope of this guide.
The U.S. Environmental Protection Agency (EPA) administers several environmental laws that also address chemicals, including provisions applicable to occupational exposures. Although the Toxic Substances Control Act (TSCA) does not apply solely to workers, it provides a comprehensive framework for assessing and restricting toxic chemicals that present unreasonable risk of harm to human health. The Resource Conservation and Recovery Act (RCRA) is concerned with management and disposal of solid and hazardous waste. The Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) regulates the manufacture, labeling, sale, and use of pesticides. The Emergency Planning and Community Right-to-Know Act (EPCRA) requires owners and operators of chemical facilities to submit reports to EPA and provide certain information to the public. These and other applicable federal environmental laws are discussed in more detail below.
Beyond these, many state and local governments have adopted chemical safety laws and regulations over the past few decades that supplement and fill some of the gaps in federal law. Contractual agreements, such as a collective bargaining agreement at a unionized worksite, or a government procurement contract, may also apply to specific worksites and include legally enforceable provisions not covered by the federal laws discussed here.
Occupational Safety and Health Act
The OSH Act tasks federal OSHA with adopting and enforcing standards to address significant workplace hazards, including toxic chemical substances, which pose a significant health or safety risk to workers.
The OSH Act applies to federal employees and most private sector workers in all states and territories except those that have sought and received approval from federal OSHA to operate their own health and safety programs (often referred to as “state-plan states”). OSHA’s jurisdiction does not extend to self-employed individuals, employers with fewer than ten employees, immediate family members of farm employers, or workplaces regulated by another federal agency (e.g., mine workers are covered by the Mine Safety and Health Act, administered by the Mine Safety and Health Administration (MSHA)).
In “state-plan states,” the legislature or state OSH agency may adopt standards that exceed the federal minimums and may expand coverage to state and local government workers. At present, 21 states and one U.S. territory operate under an approved state plan that covers both the private and public sectors. Another five states and one U.S. territory operate under a state plan covering the public sector only, with federal OSHA maintaining jurisdiction over the private sector. In the remaining 24 states and territories, federal OSHA has jurisdiction over the private sector, while the public sector is not covered.
In OSHA’s initial two years, the agency adopted approximately 400 permissible exposure levels (PELs) for chemicals in the workplace based on existing standards developed by the American Conference of Governmental Industrial Hygienists (ACGIH) in 1968.[1] OSHA also adopted about 25 exposure limits as national consensus standards, which the American Standards Association had recommended.[2] While Congress understood the start-up standards ‘“may not be as effective or up to date as is desirable,”’ the expectation was that they would serve as nationwide minimums that OSHA would strengthen as needed.[3] Yet despite significant new scientific and technological advancements, OSHA has largely been unable to update these start-up PELs due to budgetary constraints and political opposition.[4]
OSHA will cite an employer if it finds it is not complying with applicable standards, but OSHA’s chemical PELs are so weak in many instances that workers may be at risk even if an employer is in compliance. OSHA can sometimes overcome this lack of protection by citing an employer for violation of the OSH Act’s “general duty clause.” This provision of the law requires an employer to protect workers from known harm regardless of whether OSHA has adopted a standard or has an existing standard that fails to address the hazard completely. However, the agency must meet a higher burden of proof to substantiate a general duty clause citation than to substantiate a violation of standards specific to a regulated hazard.[5]
Beyond specific limits on exposures to certain chemicals, OSHA has also adopted some industry-specific standards, such as its Hazardous Waste Operations and Emergency Response (HAZWOPER) standard, which protects workers at hazardous waste sites, and its Process Safety Management (PSM) standard, which protects workers employed at facilities with processes involving any of roughly 140 highly hazardous chemicals. OSHA has also adopted recordkeeping and training requirements that apply regardless of industry. For example, OSHA’s Hazard Communication (HazCom) standard requires that employers provide workers with training and information before they work with hazardous chemicals and substances. OSHA also provides workers the right to see recordkeeping information such as illness and injury logs, personal health information, and exposure data. As discussed in Section Three below, these recordkeeping and training requirements serve as a major means for workers to obtain information about chemicals present in the workplace and learn precautionary measures to prevent injury or illness due to exposure.
If an employer fails to comply with any OSHA standard or regulation, a worker may file a complaint with OSHA, or with the equivalent state agency in state-plan states. (See Section One above for more information about filing a complaint.) Because the OSH Act does not provide workers with a private right to file a lawsuit, the only option workers have to help with enforcing the law is to file a complaint with OSHA or the state-plan equivalent.
Federal Environmental Laws
Federal environmental laws administered by the U.S. Environmental Protection Agency (EPA) can provide workers with additional protections, information, and enforcement mechanisms beyond those provided under the federal OSH Act.
First, when EPA has the authority to adopt human health standards that apply in occupational settings, the standards are often more protective of workers than those adopted by OSHA. Because EPA’s safeguards apply broadly to the public, they extend far beyond federal OSHA’s jurisdiction, which is limited and specifically excludes self-employed workers, employers with fewer than ten employees, certain farming operations, workers under the purview of another agency (e.g., mine workers), and public sector workers.[6] Unlike OSHA, EPA can impose restrictions on a chemical that can apply at any establishment.
EPA’s standards may also be more protective of human health than OSHA’s because EPA adopts standards at a risk level that OSHA has deemed “nonactionable.” OSHA has adopted a de facto policy of regulating only when it can prove a hazardous substance poses a cancer risk of 1 in 1,000.[7] In contrast, EPA’s traditional risk benchmark for exposure to a cancer-causing substance is much more protective, at 1 in 1 million.[8] Thus, an EPA rule would presumably address risks for certain substances at a level at which OSHA would not have even begun to take action. Similarly, where OSHA does take action, it might not reduce risk as significantly as EPA would.
Second, many environmental laws provide information about toxic substances that workers can use to supplement training and informational resources provided by their employers in accordance with the OSH Act. Environmental reporting and enforcement data, for example, can help workers identify uncontrolled releases of toxic substances in or around a facility in violation of environmental laws, posing a risk of exposure to workers at the facility.
Third, while the federal OSH Act does not provide workers a private right of action against employers to enforce the law, most federal environmental statutes deputize the public to pursue enforcement through “citizen suit” actions. Citizen suits are discussed in detail in Section One above. Lastly, the anti-retaliation provisions of environmental statutes are typically far more protective than the OSH Act.[9]
A summary of the federal environmental statutes that address chemical substances follows along with enforcement mechanisms these statutes offer for individuals harmed by violations. Before taking any action, it is important for workers to understand which of these laws may apply to their particular worksite. Workers should consult with advocates, representatives, and attorneys familiar with their state to understand any state variations on the federal laws.
Toxic Substances Control Act
The Toxic Substances Control Act (TSCA) establishes a comprehensive framework for addressing chemicals in interstate commerce. TSCA was initially enacted in 1976 and most recently overhauled in 2016 by the Frank R. Lautenberg Chemical Safety for the 21st Century Act.[10] TSCA tasks EPA with evaluating chemical substances in commerce in the United States and restricting or banning those substances that present an unreasonable risk to public health or the environment. Although TSCA is a far-reaching statute, it does not cover food, drugs, cosmetics, or pesticides, which other federal statutes address. While the law is not written specifically for the workplace like the OSH Act, if EPA finds that a substance presents a risk to workers, it may impose certain restrictions on new or existing uses of the substance to manage that risk. Under TSCA, EPA also imposes rules on the remediation of asbestos and polychlorinated biphenyls (PCBs). Under the Trump administration, the agency has so far declined to address occupational exposures in a meaningful way; however, as EPA moves forward with chemical evaluations, TSCA rules may provide new or supplemental protections for workers from toxic chemicals.
Under TSCA, workers can raise concerns about violations of the law by filing a tip directly with EPA. Additionally, TSCA provides members of the public, including workers, the right to file “citizen suits” to enforce the act. Specifically, any person may file a civil lawsuit against another person or establishment to restrain alleged violations of a rule or order relating to testing of chemicals or mixtures; a rule or order relating to manufacturing and processing notices; a risk management rule to restrict or ban a chemical in commerce; a rule or order relating to Asbestos Hazard Emergency Response; and a rule or order relating to Lead Exposure Reduction.
Resource Conservation and Recovery Act
The Resource Conservation and Recovery Act (RCRA), enacted in 1976, authorizes EPA to regulate the generation, transportation, treatment, storage, and disposal of hazardous waste at active sites.[11] RCRA also establishes a framework for the management of nonhazardous solid wastes. The statute was amended in 1986 to address environmental harm from the storage of petroleum and hazardous wastes in underground storage tanks.
Workers who believe they are exposed to toxic substances associated with any hazardous waste operations can submit a tip to EPA about potential violations of RCRA, in addition to filing an OSHA complaint.
RCRA also authorizes citizens to file a civil suit to enforce violations of the statute. Specifically, the law allows for civil suits against any person, past or present generator, transporter, or owner or operator of a treatment, storage, or disposal facility, who contributes to the handling, storage, treatment, transportation, or disposal of any solid or hazardous waste which may present an imminent and substantial endangerment to health or the environment.[12] RCRA’s citizen suit provision has been interpreted broadly by the courts to allow suits calling on facilities to abate imminent, potentially serious dangers to health or the environment, even if there is not a current statutory violation.[13] Citizen suits can be a powerful tool for workers seeking a court order compelling a facility to conduct site investigations, monitoring, and testing, and barring endangerment (e.g., removing the contamination) resulting from operations or cleanup.
Comprehensive Environmental Response, Compensation, and Liability Act
Enacted in 1980, and amended in 1986, the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) is the primary federal statute authorizing EPA to clean up contaminated sites and respond to the release of hazardous substances threatening public health and the environment.[14] The statute, commonly referred to as “Superfund,” imposes requirements on the cleanup of hazardous waste sites and holds the persons responsible for releases at these sites liable for the cleanup. EPA cleans up hazardous waste sites when those responsible for the releases are unidentifiable. The statute also includes provisions for reporting and responding to releases of hazardous substances into the environment.
Under section 103 of the statute, the person in charge of a facility must notify the National Response Center if a reportable quantity of a CERCLA hazardous substance is released within a 24-hour period, unless the facility has a permit for the release. These section 103 reports can be a useful tool for workers searching for information about releases from the facility at which they work.
Those working on Superfund sites can report violations of CERCLA to EPA. The law also contains a citizen suit provision, deputizing citizens to file a civil action “against any person . . . who is alleged to be in violation of any standard, regulation, condition, requirement, or order. . . .”[15] Like other citizen suit provisions, CERCLA also authorizes lawsuits against the federal government for failure to perform any nondiscretionary act or duty.
Emergency Planning and Community Right-to-Know Act
The Emergency Planning and Community Right-to-Know Act (EPCRA), enacted in 1986 as part of the Superfund Amendments and Reauthorization Act (SARA), is a federal law governing community preparedness for potential chemical emergencies. The four major provisions of EPCRA include: (1) Emergency planning; (2) Emergency release notification; (3) Hazardous chemical storage reporting requirements; and (4) Toxic chemical release inventory.[16]
The law requires local governments to prepare chemical emergency response plans with assistance from the state. These plans are intended to provide information that can be used in the event of an emergency release. EPCRA also imposes multiple reporting and notification requirements on chemical facilities. If a facility releases into the environment any of the 355 hazardous substances covered by EPCRA or the 700+ chemicals subject to emergency notification requirements under CERCLA above a reportable quantity, the owner or operator of the facility must report the release to designated government officials.
The hazardous chemical storage reporting requirements under EPCRA include community right-to-know provisions, which ensure the public has access to information about chemicals stored at, used by, or released from individual facilities within a community. Facilities that store hazardous substances above certain thresholds on site must report that data to state and local officials and the local fire department on Emergency and Hazardous Chemical Inventory forms, called “Tier I” or “Tier II” reports. Tier II reports provide all of the same information as Tier I reports, plus additional details, and are required by most states. As required by OSHA’s hazard communication standard, facilities must maintain Safety Data Sheets (SDSs) for each hazardous chemical they store or use. Under EPCRA, facilities must maintain SDSs for any chemical that meets a certain threshold quantity, as well as submit the SDSs and provide any inventory of those chemicals to state and local officials, and local fire departments.
Facilities must also submit to EPA annual documentation of how much of each chemical was managed through recycling, energy recovery, treatment, and environmental releases. The forms submitted by the facilities are compiled in EPA’s Toxics Release Inventory (TRI) and made available to the public.
Workers can look to the reporting requirements of EPCRA to find information about chemicals of concern at their particular worksite. By comparing the information reported under the various requirements, workers may also learn whether their employer is diligent in tracking the use and disposal of toxic chemicals across the various reports. If an employer is not properly reporting data to EPA or making that information publicly available in accordance with the statute, workers may submit a tip to EPA.
EPCRA also deputizes citizens to file suit against an owner or operator of a facility for failure to submit a follow-up emergency notice, submit a safety data sheet, complete and submit an inventory form containing required information, or complete and submit a toxic chemical release form for TRI chemicals.[17] Citizen suits are also permitted against the EPA administrator for failure to publish inventory forms, respond to a petition to add or delete a chemical, publish a toxic chemical release form, establish a computer database, promulgate trade secret regulations, or render a decision in response to a petition. Lastly, citizen suits can be filed against the EPA, a governor, or a state emergency response commission for failing to provide a mechanism for public availability of information, or for failing to respond to requests for certain information.
Clean Air Act
The Clean Air Act (CAA) was first enacted in 1970 and was substantially updated in 1977 and 1990.[18] The law protects human health and the environment by limiting harmful emissions of toxic pollutants from stationary and mobile sources. The statute focuses on reducing common air pollutants, limiting the emissions of toxic pollutants known to cause cancer or other serious health effects, and eliminating and reducing chemicals that destroy stratospheric ozone.
EPA has interpreted the Clean Air Act to exclude indoor air quality; however, “EPA has . . . used work practice standards to regulate air contamination from asbestos, most of which occurs indoors rather than outside, on the ground that the manner in which asbestos is handled indoors can be a major source of asbestos releases into the ambient environment.”[19]
As directed by the statute, EPA has implemented a Risk Management Plan (RMP) rule[20] that requires industrial facilities using high volumes of extremely hazardous substances to submit risk management plans to the agency. An RMP must include a hazard assessment detailing the potential effects of an accidental release, a report of accidents over the past five years, and an assessment of worst-case scenario and alternative accidental releases. The RMP must also include a prevention program describing safety precautions and maintenance, monitoring, and employee training measures. Another feature of the RMP is an emergency response program explaining training measures and procedures for response agencies and the public in the event of an emergency.
Workers who believe an employer is violating the CAA may submit concerns directly to EPA. The CAA also authorizes civil suits filed by private citizens “against any person . . . who is alleged to have violated (if there is evidence that the alleged violation has been repeated) or to be in violation of (A) an emission standard or limitation . . . or (B) an order issued by the Administrator or a State with respect to such a standard or limitation” or “against any person who proposes to construct or constructs any new or modified major emitting facility . . . or [violates] any condition of such permit.”[21] Civil suits may also be filed against the EPA administrator for failure to perform any nondiscretionary duty under the act.
Clean Water Act
Enacted in 1972, the Clean Water Act (CWA) tasks EPA with preventing pollution of U.S. waterbodies and maintaining a regulatory system for permitting discharges of pollutants into waterways.[22] Under the law, EPA establishes technology-based effluent limitations and water quality standards, develops guidance, and issues discharge permits to facilities.
In addition to filing a tip with EPA about potential violations, the CWA authorizes citizen suits filed by private parties to enforce the law. Specifically, any person may file a civil action “against any person . . . who is alleged to be in violation of (A) an effluent standard or limitation . . . or (B) an order issued by the Administrator or a State with respect to such a standard or limitation. . . .”[23] Civil suits may also be filed against the EPA administrator for failure to perform any nondiscretionary act or duty required by the act.
Federal Insecticide, Fungicide, and Rodenticide Act
The Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), enacted in 1996, authorizes EPA to regulate the distribution, sale, and use of pesticides in the United States.[24] Under FIFRA, EPA has adopted a worker protection standard that provides agricultural workers and pesticide handlers with some occupational protections.
The Worker Protection Standard[25] (WPS) requires owners and employers of agricultural establishments and commercial pesticide-handling establishments to provide workers and pesticide handlers with training on pesticide safety and information about pesticide applications. It also imposes obligations on employers to protect workers from exposures.
Violations of FIFRA, including the worker protection standard, may be reported to EPA. Unlike most other federal environmental laws, however, FIFRA does not contain a citizen suit provision.
[1] E.g., DOL Request for Information, Chemical Management and Permissible Exposure Limits (PELs), 79 Fed. Reg. 61,384, 61,388 (Oct. 10, 2014), https://www.gpo.gov/fdsys/pkg/FR-2014-10-10/pdf/2014-24009.pdf#page=1 (discussing the history of OSHA’s efforts to establish permissible exposure limits).
[2] Id.
[3] Id. at 61,419 (citing S. Rep. 91-1282, at 6 (1970)).
[4] For example, because of regulatory hurdles and strong political opposition, it took the Occupational Safety and Health Administration (OSHA) over 20 years to update its standard on deadly crystalline silica.
[5] E.g., Occupational Safety & Health Admin., U.S. Dep’t of Labor, OSHA Instruction, Directive No. CPL 02-00-160, Field Operations Manual (FOM) 4-9–4-17 (2016), https://www.osha.gov/OshDoc/Directive_pdf/CPL_02-00-160.pdf. Citing employer noncompliance under the general duty clause does not remove the need for OSHA to issue more stringent standards than those currently in effect or to issue new standards for chemicals for which OSHA has no PEL on the books. For OSHA to take action that is meaningful, however, Congress would need to update the OSH Act and enhance the agency’s authority.
[6] See Letter from David Michaels, Assistant Sec’y for Occupational Safety & Health, U.S. Dep’t of Labor, to Jim Jones, Assistant Admn’r for the Office of Chem. Safety & Pollution Prevention, Envtl. Protection Agency (Undated), http://src.bna.com/hU4.
[7] Occupational Safety And Health Law 587 (Gregory N. Dale & Katherine A. Tracy eds., 4th ed., 2019) (“OSHA has incorporated the Supreme Court’s suggested level of significant risk—a risk of 1/1,000—as a policy norm”) (citing UAW v. Pendergrass, 878 F.2d 389 (D.C. Cir. 1989) (discussing the Supreme Court opinion in AFL-CIO v. Am. Petroleum Inst. (Benzene), 448 U.S. 607, 655-56 (1999))).
[8] E.g., Clean Air Act, 42 U.S.C. § 7412(c)(9)(B), (f)(2)(A); see also Joseph M. Santarella Jr. & Susan J. Eckert, Advancing Workers’ Interest Through Environmental Laws 2.0 (2018) (unpublished) (on file with author).
[9] Whistleblower Statutes Desk Aid, Occupational Safety & Health Admin. (Feb. 23, 2016), https://www.whistleblowers.gov/sites/default/files/whistleblowers/whistleblower_acts-desk_reference.pdf (providing comparison of all whistleblower statutes under OSHA’s jurisdiction).
[10] Pub. L. No. 114-182, 130 Stat. 448-513 (codified as amended at 15 U.S.C. §§ 2601–2697 (2018)).
[11] Summary of the Resource Conservation and Recovery Act, U.S. Envtl. Protection Agency, https://www.epa.gov/laws-regulations/summary-resource-conservation-and-recovery-act (last visited Mar. 22, 2019).
[12] 42 U.S.C. § 6972(a) (2018).
[13] See Ariela Migdal, Note, RCRA in the Workplace: Using Environmental Law to Combat Dangerous Conditions in Sweatshops, 75 N.Y.U. L. Rev. 1843, 1857, 1867–68 (2000).
[14] Summary of the Comprehensive Environmental Response, Compensation, and Liability Act (Superfund), U.S. Envtl. Protection Agency, https://www.epa.gov/laws-regulations/summary-comprehensive-environmental-response-compensation-and-liability-act (last visited Feb. 13, 2019).
[15] 42 U.S.C. § 9659(a) (2018).
[16] Office of Land & Emergency Mgmt., U.S. Envtl. Protection Agency, Fact Sheet: The Emergency Planning and Community Right-to-Know Act (2017), https://www.epa.gov/sites/production/files/2017-08/documents/epcra_fact_sheet_overview_8-2-17.pdf.
[17] 42 U.S.C. § 11046(a)(1) (2018).
[18] U.S. Envtl. Protection Agency, Pub. No. EPA-456/K-07-001, The Plain English Guide To The Clean Air Act 2–4 (2007), https://www.epa.gov/sites/production/files/2015-08/documents/peg.pdf.
[19] E.g., Todd S. Aagaard, Regulatory Overlap, Overlapping Legal Fields, and Statutory Discontinuities, 29 Va. Envtl. L.J. 237, 245 (2011) (citing Clean Air Act Sec. 112(h), 42 U.S.C. § 7412(h)).
[20] 40 C.F.R. §§ 68.1–68.220 (2018); Risk Management Plan (RMP) Rule Overview, Envtl. Prot. Agency, https://www.epa.gov/rmp/risk-management-plan-rmp-rule-overview (last visited Mar. 22, 2019).
[21] 42 U.S.C. § 7604(a) (2018).
[22] Summary of the Clean Water Act, Envtl. Prot. Agency, https://www.epa.gov/laws-regulations/summary-clean-water-act (last visited Mar. 22, 2019).
[23] 33 U.S.C. § 1365 (2018).
[24] Summary of the Federal Insecticide, Fungicide, and Rodenticide Act, Envtl. Prot. Agency, https://www.epa.gov/laws-regulations/summary-federal-insecticide-fungicide-and-rodenticide-act (last visited Mar. 22, 2019).
[25] Agricultural Worker Protection Standard, Envtl. Prot. Agency, https://www.epa.gov/pesticide-worker-safety/agricultural-worker-protection-standard-wps (last visited Mar. 22, 2019).
