Workplace Chemical Protection Program Requirements: When OSHA Didn’t Act, the EPA Did

Quick Hits

• The EPA’s Workplace Chemical Protection Program under Section 6 of the Toxic Substances Control Act has introduced stringent occupational exposure limits for certain chemicals that are significantly lower than OSHA’s permissible exposure limits and short-term exposure limits. Employers must comply with the EPA’s limits.
• The WCPP framework includes comprehensive requirements, such as exposure monitoring, establishment of regulated areas, development of exposure control plans, and specific respiratory and dermal protection protocols. These requirements are codified in chemical-specific TSCA risk-management rules and operate in conjunction with OSHA standards.
• Employers must identify applicable TSCA Section 6 risk management rules, compare EPA limits to current exposure data, and implement necessary controls and monitoring to comply with the stricter EPA standards. Failure to comply with the requirements can result in significant enforcement actions and penalties.

The Legal Architecture: TSCA Section 6 and the WCPP

Under TSCA Section 6, the EPA evaluates existing chemicals and, if an unreasonable risk is found, must promulgate risk management requirements. For several chemicals, the EPA has chosen to authorize ongoing industrial or commercial uses only under a WCPP—a comprehensive framework that includes:

• ECELs (eight‑hour time‑weighted averages), and, where warranted, EPA STELs (fifteen‑minute TWAs);
• initial, periodic, and additional exposure monitoring—based on personal breathing zone sampling and specified accuracy criteria;
• the establishment and demarcation of regulated areas where ECEL/EPA STEL exceedances are likely or possible;
• an Exposure Control Plan documenting the hierarchy of controls and demonstrating that feasible controls have been considered and implemented before reliance on personal protective equipment (PPE);
• respiratory protection and dermal protection requirements aligned with OSHA programs, but sized to measured concentrations against EPA limits; and
• training, notification, and recordkeeping obligations.

These WCPP requirements are codified in chemical‑specific TSCA risk-management rules. They do not supplant OSHA standards; they operate alongside them. Where the two regimes diverge, employers must comply with both—practically, that often means achieving the lower EPA limits while continuing to meet OSHA programmatic requirements (e.g., respiratory protection under 29 C.F.R. 1910.134, PPE under 29 C.F.R. 1910.132, hazard communication under 29 C.F.R. 1910.1200).

ECELs and EPA STELs Versus OSHA PELs: The Emerging Pattern

The EPA’s recent TSCA risk-management rules demonstrate that ECELs and any EPA STELs can be an order of magnitude (or more) below OSHA’s PELs/STELs. Illustrative examples are provided in the chart below.

Chemical	OSHA PEL (8‑hr TWA)	OSHA STEL	EPA ECEL (8‑hr TWA)	EPA STEL (15‑min TWA)
Methylene chloride	25 ppm	125 ppm	2 ppm	16 ppm
Perchloroethylene (PCE)	100 ppm	200 ppm	0.14 ppm	N/A
Carbon tetrachloride (CTC)	10 ppm	N/A	0.03 ppm (0.2 mg/m³)	N/A
Trichloroethylene (TCE)	100 ppm	200 ppm	0.2 ppm (interim)	N/A

The EPA’s selection of ECELs/EPA STELs is grounded in current risk evaluations and is aimed at eliminating unreasonable risk to “potentially exposed persons,” a term broader than OSHA’s “employees.” In addition to workers, it encompasses volunteers, self‑employed persons, and some state and local government workers outside OSHA plan coverage. This broader scope helps explain why WCPP limits may be lower and why a facility in full compliance with OSHA could still have obligations to further reduce exposures under TSCA.

How the WCPP Imposes Obligations Below OSHA Limits

Even where OSHA PELs are higher, the WCPP makes the lower EPA values controlling for ongoing uses authorized under TSCA. In practice, this results in several concrete obligations:

• Monitoring against EPA limits. Initial monitoring must establish a baseline relative to the ECEL and any EPA STEL using personal breathing zone sampling, specified accuracy tolerances, and a representative sampling design. Monitoring results at or above the ECEL “action level” (typically one‑half the ECEL) often trigger more frequent periodic monitoring and other ancillary controls—even though the action level is not itself an exposure limit.
• Regulated areas keyed to EPA limits. Employers must establish and demarcate regulated area(s) wherever airborne concentrations exceed, or may reasonably be expected to exceed, the ECEL or EPA STEL. Access controls, signage (often multilingual), training, and PPE/respirator prerequisites must be enforced for entry.
• The Exposure Control Plan and hierarchy of controls. Employers must develop and implement an Exposure Control Plan demonstrating consideration and implementation of feasible elimination, substitution, and engineering controls, followed by administrative/work practice controls. Reliance on PPE is permitted only after feasible higher‑tier controls are considered and implemented. The plan must be reviewed and updated, typically at least every five years, and be made available to potentially exposed persons.
• Respiratory and dermal protection scaled to EPA limits. Where monitoring shows exposures above an ECEL or EPA STEL pending implementation of feasible controls, respiratory protection must be provided based on measured concentrations vis‑à‑vis EPA limits. For some chemicals (e.g., methylene chloride), only supplied‑air respirators are permitted due to cartridge service‑life concerns. Direct dermal contact controls and selected chemical‑resistant PPE (e.g., gloves with demonstrated resistance) may also be required.
• Training, notification, and recordkeeping. Employers must notify potentially exposed persons of monitoring results, explain exceedances and corrective actions, and document training, exposure data, program implementation, and plan updates. Records are typically retained for five years (longer periods may also apply under OSHA).

These obligations apply regardless of OSHA compliance. For example, a methylene chloride user who reliably maintains exposures below OSHA’s 25‑ppm PEL and 125‑ppm STEL may still be out of compliance under TSCA if exposures exceed the EPA ECEL of 2 ppm (8‑hr TWA) or the 16‑ppm EPA STEL (15‑minute TWA).

Dual Compliance and Enforcement Alignment

The EPA’s WCPP rules expressly acknowledge that they do not supersede OSHA. Employers must comply with both. Notably:

• OSHA remains the programmatic benchmark for respiratory protection and PPE programs, medical evaluations, fit testing, and training. WCPP rules generally align with 29 C.F.R. 1910.134 and 1910.132, but the trigger for PPE/respirators is the EPA’s stricter ECEL/EPA STEL.
• The EPA and OSHA have formalized coordination for Section 6 chemicals. Information sharing is intended to improve implementation and enforcement and to minimize gaps for worker populations not covered by OSHA.

As a practical matter, employers can expect EPA inspections and information requests keyed to WCPP elements and OSHA to consider the EPA’s limits and findings in relevant contexts. Where the EPA discovers exceedances of ECELs/EPA STELs or deficiencies in Exposure Control Plans, regulated areas, or monitoring, TSCA’s enforcement tools—including daily civil penalties—may apply.

Action Items for Employers

Employers might consider the following guideposts to better effectuate compliance:

• Identifying whether any TSCA Section 6 risk-management rules with WCPP requirements apply to chemicals and conditions of use, including upstream processing and downstream use
• Comparing EPA ECELs/EPA STELs to current exposure data, recognizing that compliance with OSHA PELs/STELs alone may be insufficient
• Planning and executing initial monitoring in the manner and by the deadlines required, using personal breathing zone sampling and specified accuracy requirements, using the results to set periodic monitoring cadences
• Establishing regulated areas and access controls based on EPA limits and ensuring entry prerequisites, signage, and multilingual communications are in place
• Developing or updating Exposure Control Plans to document feasibility analyses and implementation across the hierarchy of controls, avoiding overreliance on PPE where feasible controls exist
• Aligning respiratory and dermal PPE programs to measured concentrations against EPA limits while ensuring proper respirator type selection and training consistent with OSHA standards
• Implementing training, notification, and five‑year recordkeeping protocols specific to WCPP requirements

The Bottom Line

The EPA’s WCPP has ushered in a new era in occupational chemical risk management. For several high‑priority chemicals, compliance now turns on meeting the EPA’s ECELs and EPA STELs—values that frequently sit well below OSHA’s PELs and STELs. Employers that have long relied on OSHA compliance as the ceiling for exposure controls will likely want to reassess their programs. Where a WCPP applies, the controlling legal limit is the EPA’s, and the obligation to evaluate and implement feasible controls to achieve those lower limits is immediate, detailed, and enforceable.

Ogletree Deakins’ Workplace Safety and Health Practice Group will continue to monitor developments and will provide updates on the Workplace Safety and Health blog as additional information becomes available.

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