Employers Enter a ‘Tricky Time’ of Dual, Evolving Chemical Rules

The Occupational Safety and Health Administration’s recent proposal to stop requiring medical evaluations for workers using certain respirators sets up a potential conflict with separate but related protections in five EPA chemical rules.

Dropping the mandatory medical evaluation would undermine the Environmental Protection Agency’s rules, said Rebecca Reindel, director of occupational safety and health for the AFL-CIO.

All five of EPA’s rules direct employers to use engineering and other methods to reduce employees’ chemical exposures. But they allow respirators to be used if necessary—provided the employer complies with OSHA’s medical evaluation and related requirements and also ensures the respirators are appropriate and fit.

“Without medical exams, we don’t know who can wear a respirator safely or whether the respirator will be effective,” Reindel said.

Conflicting rules create problems and uncertainty for companies and their employees, so it’s important to focus on the conundrum now while relatively few workplaces are affected.

The Toxic Substances Control Act (TSCA) requires the EPA to examine, and when needed, regulate an ever-growing number of chemicals widely used by the aerospace, auto, coatings, plastics, rubber, and many other industries.

Tug-of-War

The tug-of-war that would result if OSHA requirements become less stringent than the EPA’s would increase the chasm between the agencies’ mandates, said Stephanie Sebor, a partner with Jenner & Block LLP.

That chasm would add to uncertainty about the EPA’s rules, which are being challenged in court, she said. Potential changes make this an evolving and “tricky time for employers,” said Sebor, who advises corporations about workplace health and safety issues.

All five of the EPA’s chemical control rules are being challenged in courts.

Two federal appeals courts are deciding whether to grant EPA’s motions to revise carbon tetrachloride and trichloroethylene rules issued during the Biden administration. The US Court of Appeals for the Fifth Circuit gave parties until Aug. 21 to resolve disputes or proceed to litigate the agency’s perchloroethylene rule.

The Fifth Circuit has scheduled oral argumentsin a lawsuit challenging the EPA’s chrysotile asbestos rule;that court is expected to issue an opinion on the agency’s methylene chloride regulation following June’s oral arguments.

Meanwhile, some industries must comply with the EPA’s rules, Sebor said.

Employers should continue taking all appropriate actions to protect their workforce, she said. “Hold the horse and wait for certainty, even though we don’t know when that will be.”

‘Kernal of Emerging Problem’

The EPA or Congress needs to recognize the problem of having two regulatory schemes with overlapping or concurrent jurisdiction over the workplace, said Karyn Schmidt, a principal at Squire Patton Boggs.

While only a handful of final EPA chemical risk management regulations bump into OSHA rules now, they illustrate “a kernel of an emerging problem. And the problem is only going to get bigger over time,” said Schmidt, who has more than 30 years’ experience working on chemical regulations and policies.

The 2016 TSCA amendments require the EPA to examine chemicals risks and, when necessary, regulate them—in perpetuity, she said.

At some point there could be dozens, even hundreds of EPA rules affecting the workplace, Schmidt said. The additional risk evaluations and regulations “will create more and more pressure to ensure these regulatory schemes are aligned.”

“You can’t have ambiguity and confusion about safety,” said Samuel Pond, managing partner of Pond Lehocky Giordano Inc., who represents workers in toxic tort litigation. “You have to have consistent regulatory rules.”

Congress could clarify the regulatory structure for the workplace, Schmidt said.

Lawmakers could direct the EPA to take a more limited or a subordinate role in evaluating worker risks and regulating the workplace, she said.

Congress also could establish a multiplayer structure, she said, in which the EPA would evaluate chemical risks, another agency or entity working with the industrial hygiene community would make risk reduction recommendations, and a third agency would issue workplace regulations.

Unless stakeholders come up with a more cohesive approach for their preferences, however, it would be a challenge for Congress to act, Schmidt said.

The EPA also could revise its strategies for evaluating chemical risks and regulating them, she said.

Coming Rules; Comments

The public will have a chance to see the second Trump administration’s approach to worker protections in chemical regulations if, as TSCA requires, the EPA finalizes three chemical rules to reduce risks the agency identified.

The rules would be for: n-methyl-2-pyrrolidone, used to make petrochemicals, electronics, plastics, and resins; C.I. Pigment Violet 29, used to make paints and coatings the car, plastic, rubber, carpeting, and other industries use; and 1-bromopropane, a solvent used to make adhesives, degreasers, cleaners, and automobile care products.

The EPA is expected to propose rules for three flame retardants known as the cyclic aliphatic bromide cluster, which are used in building insulation, recycled plastics, and automobile replacement parts; and for 1,4-dioxane, an industrial and commercial solvent sometimes unintentionally generated by chemical mixtures in detergents and other products.

And the EPA plans to revise procedures and policies it uses to decide whether a chemical is so risky that the TSCA requires the substance to be regulated. The US Court of Appeals for the District of Columbia Circuit in April gave the agency time to do that by pausing litigation over a 2024 chemical risk evaluation rule.

Policies the EPA is rethinking include how to take into account worker protections that certain industries use.

Companies and their trade associations should take advantage of comment opportunities for OSHA’s regulatory changes and EPA releases of draft risk evaluations and rules, Sebor said.

Industry comments can help one agency be aware that the other is regulating, or may regulate, the same chemical, she said.

It’s an opportunity to highlight possible confusions, conflicts, or challenges that may arise from having separate workplace regulations for that substance, she said.

“Keeping an eye on the rulemaking and litigation developments is important,” Sebor said. “It’s in companies best interest to flag potential issues.”