The U.S. Environmental Protection Agency (EPA) announced on January 13, 2025, that it signed a long-awaited 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). According to EPA’s press release, “EPA and OSHA anticipate that better coordination under this MOU will result in improved workplace health and safety protections for workers using existing chemical substances under TSCA and the Occupational Safety and Health (OSH) Act and allow for effective implementation of our national workplace and environmental protection statutes.”

EPA states that continuing the existing collaboration between EPA and OSHA on workplace exposures as part of EPA’s prioritization, risk evaluation, and risk management of existing chemicals, the MOU will further facilitate information sharing in the form of 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;
• Outreach and communication materials for stakeholders about EPA rules and OSHA requirements, including TSCA Section 6 and OSHA rules that regulate the same chemical hazards;
• Inspections and enforcement activity such as each agency’s areas of focus, complaints, inspections, and potential violations where mutual interest exists; and
• Protocols to ensure that confidential information is being properly exchanged between the agencies when carrying out law enforcement actions or otherwise protecting health or the environment.

EPA notes in the press release 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 explicitly includes workers. According to EPA, the agencies together have the statutory responsibility to ensure the safety and health of the public and the nation’s workforce through the timely and effective implementation of federal laws and regulations, including TSCA and the 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.

According to EPA, TSCA differs from the OSH Act in several respects, however, including jurisdiction: 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 that are 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 “[r]equirements set under TSCA must use the best available science to address unreasonable risk — identified without consideration of cost or other non-risk factors; whereas standards set under the OSH Act are 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.”

Commentary

While we are pleased that EPA is expanding upon its views of the ever unclear jurisdictional divide between its authority under TSCA and OSHA’s authority under the OSH Act, Bergeson & Campbell, P.C. (B&C^®) was a bit disappointed with the revised MOU’s lack of substance. EPA has over the years shared with the regulated community that it was working on the MOU and aware of the need to clarify responsibilities considering Lautenberg’s enactment almost nine years ago. Despite the passage of time and the buildup, the MOU is remarkably devoid of specificity and anything truly “new.” The MOU can perhaps be best summarized as “EPA will talk to OSHA,” as it does routinely, and “EPA and OSHA will refer potential violations to each other.”

That EPA has different statutory authority under TSCA from OSHA’s statutory authority under the OSH Act is of course crystal clear. OSHA’s authority does not extend to certain types of workers (volunteers, self-employed, and some government employees). What is less clear 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 agencies are urged to supplement their efforts in this regard in a few key areas. For example, the agencies should consider whether EPA or OSHA is better suited to promulgate workplace protective measures to ensure workers outside of TSCA authority are adequately protected and identify more precisely how best EPA and OSHA coordinate on hazard communication measures so that EPA does not require hazard statements on Safety Data Sheets (SDS) even though those hazards are well below the classification cutoffs under the HCS. This practice often leads to confusing or conflicting statements on an SDS, undermining the very purpose of the HCS.

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. After all, the regulated community and other constituencies have much to contribute to identifying areas where greater clarity is needed.