EPA’s Chemical Risk Plan Draws Industry Support, State Pushback

Companies making and using chemicals to produce goods are backing the EPA’s deregulatory proposal to reverse Biden-era approaches used to decide when chemicals are so risky they have to be regulated.

A coalition of 15 Democratic attorneys general, however, was among the groups objecting to the Environmental Protection Agency’s proposal as a threat to public health and the environment.

Dozens of parties submitted diverse perspectives to the EPA by the Nov. 7 public comment deadline about its proposed regulation describing how it would decide whether a chemical—or ways it’s used—poses an “unreasonable risk,” a designation that means the agency must restrict the compound in some way.

A core dispute is whether, when Congress overhauled the Toxic Substances Control Act (TSCA) in 2016, it wanted the EPA to make a single determination that a chemical presents unreasonable risk or whether the agency should make multiple risk conclusions one-by-one based on a chemical’s varied uses.

In 2022, using the Biden-era policies it later codified, the EPA concluded methylene chloride itself posed unreasonable risks. That revised the agency’s finding in 2020, under the first Trump administration, that 47 out of the 53 methylene chloride uses it examined posed an unreasonable risk. Domestic manufacture, for example, wasn’t excessively risky, the agency concluded in 2020.

In 2024, the Biden administration issued its risk evaluation rule codifying its conclusion that Congress intended for the EPA to make a single determination. That reversed the use-by-use risk conclusion approach the EPA included in the first Trump administration’s 2017 risk evaluation rule and that the agency is proposing to adopt again.

Companies and industry groups including the Olin Corp., American Chemistry Council, and the TSCA Risk Evaluation Reform Coalition welcomed the EPA’s proposal to return to use-by-use risk determinations.

The single determination, sometimes called the “whole chemical” approach, is inconsistent with TSCA because it ignores federal preemption of state chemical regulations, the industry groups said. Under the TSCA amendments, the EPA’s conclusion that a particular use of a chemical does not pose an unreasonable risk means states can’t restrict that use of the chemical, they said.

The attorneys general from 14 states and the District of Columbia, however, said requiring the EPA to make separate risk determinations for each condition of a chemical’s use is impermissible and threatens to splinter the EPA’s risk evaluation process. By ignoring the total risks from combined chemical exposures, “the proposal could lead to risk evaluations that forgo consideration of potential exposures with significant harmful cumulative effects,” they said.

Omitting Chemical Uses

Another central disagreement is whether the EPA can narrow the uses of a chemical it examines.

One of several ways the agency proposed to narrow TSCA risk evaluations would be to omit chemical exposures that may be regulated under environmental laws such as the Clean Air Act (CAA) or Clean Water Act, the agency said.

The Small Business Administration’s advocacy office supported the EPA’s approach. The Regulatory Flexibility Act requires agencies to avoid duplicative, overlapping, or conflicting federal rules, it said.

But excluding exposures from risk evaluations, because they ostensibly are managed by statutes other than TSCA, would undermine the EPA’s ability to prevent pollution in ways that save money and drives innovation among small businesses, said the Toxics Use Reduction Institute of Massachusetts (TURI). The commonwealth established the group in 1989, and it works with businesses to reduce their use of toxic chemicals.

TURI offered case studies of companies it said were spurred by TSCA’s risk findings to find solutions that reduced their use of hazardous chemicals but were cheaper than air emissions technology, for example, that would have been required to meet CAA requirements.

TSCA’s analyses shouldn’t exclude chemical exposure pathways covered by other regulations, said the American Water Works Association and Water Environment Federation. In a joint comment, they pointed to 23 million US households that rely on private drinking water wells. The Safe Drinking Water Act doesn’t regulate wells, so TSCA analyses are needed to determine the extent of risks posed by chemicals in their water, they said.

Workers; Defining ‘Unreasonable’

A third core policy the EPA proposes to overturn is the Biden-era presumption that workers don’t always have or use properly working and fitting personal protective equipment (PPE) to protect them from harmful chemicals.

Companies require workers to use PPE, making it a circumstance that, under TSCA, “is intended, known, or reasonably foreseen,” and therefore something the EPA must consider, said the Olin Corp.

Research shows workers don’t always have or use PPE, said the Environmental Defense Fund and other groups. Ignoring that science and omitting information about different ways people are exposed to chemicals “are just two ways in which EPA’s proposed regulations are inconsistent with the best available science legal standard of TSCA,” it said.

The TSCA Risk Evaluation Reform Coalition separately weighed in on a fundamental aspect of amended TSCA’s requirement that the EPA identify and regulate unreasonably risky chemicals.

The phrase “unreasonable risk” is “arguably the most important and impactful term in all of TSCA,” the coalition said. Not only does it determine whether a chemical must be regulated, knowing what’s unreasonable determines the extent of regulation, because under TSCA, the EPA is supposed to regulate chemicals only “to the extent necessary,” it said.

Yet the statute does not define the phrase nor does EPA’s proposed regulation, although it lists criteria the agency uses to reach that conclusion.

Absent a definition, the EPA has defined unreasonable risk as any risk, the coalition said. It offered a definition, a portion of which says the term “does not include risks that are speculative, transient, insubstantial, or similar to risk levels attributed to natural background levels of the chemical substance (from normal human metabolism or natural formation in the environment).”

Unreasonable does mean an actual or a more likely than not potential for “significant, irreversible, adverse acute or chronic human health injury from known exposure to the chemical substance undergoing risk evaluation,” the coalition said.