The U.S. Environmental Protection Agency announced on Jan. 13, 2025, that it signed a much-anticipated memorandum of understanding (MOU) with the Occupational Safety and Health Administration (OSHA), formalizing coordination on EPA’s work to assess and manage existing chemicals under Section 6 of the Toxic Substances Control Act (TSCA). A closer read of the MOU leaves us wanting more than what is there.
Background
OSHA is the primary federal agency addressing workplace safety. Yet, EPA plays a prominent, and some would say, outsized role in controlling chemical exposures in the workplace. Given the lack of clarity as to who does what, many expected the MOU to offer greater insights in this area.
EPA notes that the 2016 amendments to TSCA expanded EPA’s authority and responsibility to protect workers, requiring EPA to consider potentially exposed and susceptible subpopulations in chemical risk evaluations, a category that includes workers. The agencies together have the statutory responsibility to ensure the safety and health of the public and the nation’s workforce through the effective implementation of federal laws and regulations, including TSCA and the Occupational Safety and Health (OSH) Act.
EPA states that the chemical rules that OSHA promulgates under the OSH Act and that EPA promulgates under TSCA Section 6(a) share a broadly similar purpose, and the control measures OSHA and EPA require to satisfy the objectives of their respective statutes may overlap or coincide. The problem is these overlapping roles leave the regulated community unclear on who does what.
Key Differences
According to EPA, TSCA differs from the OSH Act in several respects. TSCA regulates the use of chemicals more broadly, while the OSH Act regulates health and safety in the workplace. TSCA also covers a wider range of workers not covered under the OSH Act, such as volunteers, self-employed workers and some state and local government workers. As a result, EPA states that its findings and occupational risk mitigations may differ from OSHA’s. For example, while OSHA has set regulatory exposure limits for some chemicals, OSHA set most of these limits shortly after the adoption of the OSH Act in 1970. EPA notes that, by contrast, the exposure limits it is establishing as part of current risk management rules “are derived from current scientific review.”
EPA notes that requirements set under TSCA must use the best available science to address unreasonable risk — identified without consideration of cost or other non-risk factors. Under the OSH Act, the agency is constrained by requirements that OSHA prove proposed controls are “economically and technically feasible.” EPA states that although it considers non-risk factors such as the effect on the national economy and technological innovation when weighing options sufficient to address the unreasonable risk under TSCA, “the differences in statutory authorities can also lead to differences between the two agencies’ regulatory approaches.”
Information Sharing
EPA states that continuing the existing collaboration between EPA and OSHA on workplace exposures will facilitate information sharing through notification, consultation and coordination where appropriate. According to EPA, the agencies will share information on TSCA Section 6 prioritization, risk evaluation, rulemaking and implementation efforts as it pertains to chemical hazards in the workplace; communication materials for stakeholders about EPA rules and OSHA requirements; inspections and enforcement activity; and protocols to ensure that confidential information is properly exchanged.
Discussion
Many were disappointed with the revised MOU’s lack of substance. EPA has been working on the MOU for years. Despite the passage of time and the buildup, the MOU is devoid of specificity and anything truly “new.” The MOU seems to state that “EPA will talk to OSHA,” as it does routinely, and “EPA and OSHA will refer potential violations to each other.”
What remains unclear is how the federal government toggles between its two grants of authority to ensure workers are adequately protected and suitably acknowledges the protective effects of compliance with the OSH Act, including the Hazard Communication Standard (HCS) and multiple OSHA Standards, and how EPA’s regulatory actions under TSCA are duplicative of or inconsistent with the HCS. These are the areas inviting the greatest uncertainty and on which the MOU’s provisions are most silent.
The new administration may wish to consider engaging in a more transparent public process to elicit stakeholder comments on ways to strengthen the interaction between EPA and OSHA. Regulated entities have much to contribute to identifying areas where greater clarity is needed.
