By Lawrence P. Halprin, a partner in the Washington, D.C. office of Keller & Heckman LLP.


Reflecting on the implementation of the Toxic Substances Control Act (TSCA) under the Biden Administration, it appears the Environmental Protection Agency (EPA) will eventually supersede and largely replace the Occupational Safety and Health Administration (OSHA) as the agency with primary responsibility for establishing substance-specific toxic chemical standards for the workplace.

With respect to “existing chemicals,” this is important for three reasons. First, Section 6 of TSCA generally grants EPA the authority to impose (by rule) a complete ban or virtually any lesser restrictions on the manufacture, processing, distribution, and use of toxic chemicals that EPA demonstrates to be necessary to eliminate “unreasonable risk” to human health or the environment. In contrast, Section 6 of the Occupational Safety and Health (OSH) Act generally grants OSHA the authority to impose (by rule) control measures on employers that OSHA demonstrates to be necessary to eliminate or reduce “significant risk” to employees in the workplace, but only to the extent OSHA also demonstrates that compliance is technically and economically feasible for each affected commercial/industrial sector or condition of use. Second, for two reasons, as explained below, EPA’s threshold for “unreasonable risk” from exposure to a toxic chemical is likely to be at least an order of magnitude below OSHA’s threshold for “significant risk.” Finally, the civil and criminal enforcement sanctions available under TSCA far exceed those applicable to violations of the OSH Act.

These differences and their likely impact are discussed below in the context of EPA’s recently proposed Risk Management Rule for methylene chloride, which is likely to be at least the initial template for all future TSCA Section 6 Risk Management Rules. (click the PDF button above to read entire paper).