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December 12, 2023

House Republicans Seek Answers from EPA on Its Use of TSCA Section 6 Authority

Lynn L. Bergeson Carla N. Hutton

On December 6, 2023, a group of Republican Representatives sent a letter to U.S. Environmental Protection Agency (EPA) Administrator Michael S. Regan regarding EPA’s risk evaluation of existing chemicals under the Toxic Substances Control Act (TSCA). According to the letter, the Representatives are “concerned that the EPA is using TSCA section 6 in a way that both subverts and supplants the statutory responsibilities of the Occupational Safety and Health Administration (OSHA).” The letter notes that, for example, OSHA sets enforceable, permissible exposure limits (PEL) to protect workers against the health effects of exposure to hazardous chemicals. In its risk management rules, EPA “has construed its authority so broadly through the creation of Existing Chemical Exposure Limits (ECELs) that it is — for the first time — claiming the authority to regulate indoor air and is usurping OSHA’s PEL authority on a chemical-by-chemical basis,” however.

The Representatives request responses to the following questions by December 15, 2023:

  • Regarding the prioritization, scoping, and risk evaluation provisions in TSCA Section 6(b), for chemicals already subject to commercial manufacture for an established use:
    • How does EPA’s current practice align with its statutory requirements for each of these activities?
    • Under EPA’s current practices, please identify any differences in treatment or consideration of a chemical substance or mixture between these activities.
  • How will EPA conduct scoping activities under TSCA Section 6(b)(4)(D) that will “transparently, discriminatingly, and unquestionably” identify matters within scope for a risk evaluation and those that are not?
  • Please provide copies of all the reports provided to OSHA under TSCA Section (9)(a)(1).
  • Please provide documentation of all meetings and communications that occurred with OSHA, pursuant to TSCA Section 9(a)(6), to ascertain whether EPA was duplicating efforts for any ECELs that it proposed.
  • Please identify all EPA’s efforts, whether in conjunction with OSHA or another entity, to review and consider the adoption of globally acceptable occupational exposure limits (OEL) for those chemicals for which EPA is proposing an ECEL under TSCA Section (6)(a). In particular, please identify the following:
    • Parties that EPA consulted.
    • All analyses, including those pursuant to TSCA Section 6(c), that indicate whether and to what extent EPA considered an ECEL that made domestic production for a chemical less globally competitive and resulted in no corresponding health benefit.
    • ECELs subject to peer review by industrial hygienists and provide the recommendations of those industrial hygienists.
    • ECELs that received a public comment period of at least 60 days.
  • If a proposed ECEL was not subject to peer review by industrial hygienists or did not receive at least 60 days for public comment, please explain the reasons for such a decision.
  • Regarding TSCA Section 6 rulemakings for chemicals already subject to commercial manufacture for an established use:
    • Are all draft TSCA risk evaluations undergoing a “full and meaningful” rulemaking process involving engagement from other agencies and adequate time for the public, including potentially regulated entities, to comment given the complexity of the proposed rules?
    • Does TSCA preclude EPA from engaging in adequate notice and public comment on draft risk evaluations?
    • Has EPA denied requests for extension of the public comment period of at least another 30 days, but not more than another 60 days? If so, why?
    • Have all draft and final TSCA risk evaluations and risk management rules undergone a complete and thorough interagency review process? If not, please identify those that have not and the reasons.
    • Have all draft and final TSCA risk evaluations and risk management rules been subject to review under the Small Business Regulatory Enforcement Fairness Act (SBREFA)? If so, what was EPA’s response to the SBREFA recommendations? If not, how did EPA determine that the evaluations and rules did not have a significant impact on a substantial number of small entities?