Debate Swirls Over Agency Oversight of Workplace Chemical Safety

A debate over which federal office should be the primary regulator of hazardous chemical safety in the workplace is playing out in courts and Congress.

Questions over regulations of hazardous chemicals in the workplace by the Environmental Protection Agency and Occupational Safety and Health Administration stem from 2016 changes to the Toxic Substances Control Act (TSCA) directing the EPA to examine commercial chemicals’ potential to harm workers’ health. Under those changes, if the EPA finds a chemical is too risky, it must be regulated.

“It’s not uncommon to have overlap between agencies,” said Gina Fonte, a partner at Holland & Knight LLP whose practice includes workplace safety regulations. But, more clarity and direction is needed to make sure the agencies work together, because otherwise there’s confusion and conflict, she said.

Briefs in two lawsuits challenging the EPA’s risk management rules and draft legislation to revise the nation’s commercial chemicals law offer different approaches to adding that clarity in the agencies’ dual responsibility.

Olin Corp. and the American Chemistry Council are among the companies and trade associations that argue TSCA already provides clarity. It includes a provision directing the EPA to refer risky chemicals to other agencies when they can craft risk-reducing regulations, the companies said in court motions.

While the statute allows the EPA to refer rulemaking to other agencies, it allows the environmental agency to develop rules it deems necessary to protect the health of workers and other populations, labor groups counter.

It’s not a solution to defer to OSHA and expect it to regulate chemicals workers are being exposed to, said David Michaels, the longest serving OSHA administrator in the agency’s history who is now a professor at the George Washington University Milken Institute School of Public Health.

OSHA’s rulemaking requirements and risk evaluation practices mean that permissible exposure limits (PELs) it would set for chemicals would still allow workers to be exposed to unreasonable risks, which TSCA doesn’t allow, he said.

Court decisions have made it “almost impossible for OSHA to promulgate chemical standards,” said Bob Nocco, who worked with industry groups during negotiations over the amendments to TSCA and now chairs the Society for Risk Analysis’ Occupational Health and Safety Committee.

A solution would be for the EPA to develop workplace chemical regulations and have OSHA enforce them, he said.

Of the 21 risk evaluations the EPA finalized since 2016 involving chemicals in commerce, all found excessive risks to workers. And each of the first rules the EPA issued to eliminate five of those chemicals’ unreasonable risks included worker protection requirements.

‘Shared Complementary Responsibilities’

Rules the EPA develops to comply with TSCA’s requirement to eliminate unreasonable workplace risks “do not displace or preempt OSHA regulation,” the environmental agency said in an emailed response to questions.

OSHA described its relationship with the EPA as one of shared complementary responsibilities. “OSHA believes the agencies have a productive and effective working relationship that functions in the manner Congress directed,” the agency said by email.

The EPA and OSHA have begun talks to update an existing memorandum of understanding to delineate each agency’s roles and articulate areas of collaboration, the EPA said. Congress directed the EPA to revise the memorandum in a report accompanying the agency’s fiscal 2026 appropriations.

Lawsuits

Meanwhile, industry groups in a lawsuit over EPA’s risk management rule for methylene chloride said the agency failed to give OSHA the opportunity TSCA provides to consider whether a workplace standard lower than its PEL would be appropriate. The EPA’s limit of 2 parts per million (ppm) is more than 10 times lower than OSHA’s 25 ppm PEL.

In a case challenging the EPA’s chrysotile asbestos rule, industry groups similarly maintained TSCA requires the EPA to first ask whether OSHA would further regulate the cancer-causing mineral and wait for a response before taking any regulatory action.

The EPA assumed OSHA could not mitigate asbestos’ unreasonable risk sufficiently, but offered no analysis to back up that assertion, said Olin, American Chemistry Council, and other state chemical trade associations.

In their asbestos and methylene chloride briefs, the AFL-CIO and United Steelworkers unions said “TSCA does not require EPA to refer all regulation of workplace hazards to OSHA.”

The statute gives the EPA administrator discretion to decide when it will defer to another agency to regulate a chemical’s unreasonable risk, they said.

Before the 2016 amendments, TSCA gave the EPA authority to regulate workers’ chemicals exposure, the unions said. “The 2016 amendments reaffirmed EPA’s obligation to address unreasonable occupational risks.”

Legislation

A draft TSCA reform bill circulated by lawmakers doesn’t require the EPA to defer workplace regulations to OSHA, but it says the agency can’t issue a chemical regulation that’s inconsistent with another agency’s requirement for the same substance.

If that text were to become law, “the EPA would have to defer to OSHA’s PELs, which are not going to be as protective,” Nocco said. OSHA’s website states many of its PELs “are outdated and inadequate for ensuring protection of worker health.”

Yet there’s no inconsistency between the EPA setting a regulatory standard that’s lower than OSHA’s, said Randy Rabinowitz, executive director of the OSH Law Project.

If a company complies with the EPA’s tighter standard, it automatically complies with OSHA’s limit, said Rabinowitz, who represents unions challenging or intervening in cases over the EPA’s chemical control rules.

It’s essential for the EPA to regulate workplace chemicals, because OSHA’s standards process is broken, said Michaels, the former OSHA administrator.

The rulemaking requirements that OSHA must follow to prove a PEL is needed and economically and technically feasible are so burdensome the agency has been able to issue only three PELs in the last 25 years, Michaels said. The vast majority of OSHA’s approximately 500 PELs standards date to the 1960s or earlier, he said.

Workers “literally are the canaries in the coal mine,” Michaels said. They’re exposed to much higher levels of chemicals and getting sick, which should not be allowed, he said. “Why should workers be mistreated?”