Industry Petitioners Challenge EPA’s Use of TSCA to Regulate Workplace Chemical Exposures
Industry petitioners are arguing before the D.C. Circuit that EPA has overstepped its authority under the Toxic Substances Control Act (TSCA) by assuming powers to regulate worker chemical exposures—powers that they argue that rightfully belong to OSHA.
United Steel Workers v. EPA, No. 24-1151, consolidates multiple cases challenging EPA’s May 2024 revisions to the procedures for TSCA risk evaluations. That rule reversed key Trump-era policies by requiring the agency to consider all possible uses of a chemical, issue a single risk determination, and not assume PPE usage.
The industry petitioners, which include the Texas Chemistry Council and the American Chemistry Council, are challenging these changes in full. However, their October 10 brief also questions EPA’s ability to circumvent OSHA’s role in regulating workplace chemical exposures, arguing that “TSCA is not, and was not intended to be, a worker protection law.”
Their arguments center on TSCA section 9, which allows EPA to report a chemical’s unreasonable risks to another agency if EPA believes they could mitigate the risks. “In context, TSCA requires EPA to refer regulation of TSCA chemicals that pose unreasonable risks to workers to OSHA if regulation under the OSH Act may prevent or reduce risks of chemical exposure in the workplace,” the industry petitioners’ brief states. “Only if the referral agency fails to act may EPA proceed to regulate those risks to workers.”
The industry petitioners additionally argue that EPA should give greater consideration to existing OSHA regulations, including those requiring the use of PPE, when considering chemical exposures to workers. However, a collection of labor petitioners in the case contend that EPA should be prohibited from considering PPE entirely during risk evaluations, asserting that the agency’s approach “confuses risk evaluation with risk management.”
EPA has declined to exercise its referral powers in recent rulemakings, arguing that “gaps exist between OSHA’s authority to set workplace standards under the OSH Act and EPA’s obligations under TSCA section 6 to eliminate unreasonable risk.” For example, according to EPA, OSHA must consider the economic and technological feasibility of regulation in circumstances where EPA does not.
More on EPA’s 2024 revisions to the procedures for TSCA risk evaluations can be found in a previous blog post.
