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TSCA Implementation at EPA: Looking Ahead

Beveridge & Diamond, P.C., February 22, 2013

Following the reelection of President Obama and the departure of Administrator Lisa Jackson, the Environmental Protection Agency will continue to aggressively implement its Enhanced Chemicals Management Program under the Toxic Substances Control Act (TSCA). While EPA will be able to continue and build on its recent policies,[1]there will also certainly be opportunities to rethink and refine certain policy elements going forward. EPA’s plans under existing TSCA authority are important even in light of the ongoing discussions in Congress regarding legislation to modernize TSCA. Such legislation is not likely to pass in calendar year 2013,[2]but its shape and prospects will be strongly influenced by EPA’s contemporaneous actions and strategies, and by how successful those actions and strategies are perceived to be by various stakeholders. This report assesses EPA’s announced plans as well as unofficial predictions and general trends to paint a picture of some of the top issues and actions that are likely to affect U.S. chemicals management in the upcoming year.[3]

A.  New EPA Administrator

Lisa Jackson left her post as Administrator effective February 14, 2013.  Since then, EPA has been headed by Acting Administrator Bob Perciasepe (also the Deputy Administrator). President Obama is expected to nominate Gina McCarthy, the current Assistant Administrator for Air and Radiation, to the top post at EPA. Prior to her current position, McCarthy served as the Commissioner of the Connecticut Department of Environmental Protection. Her choice is widely seen as an indication that EPA will continue a fairly aggressive plan of regulatory and policy action on a number of fronts, presumably including chemicals management. McCarthy also has a reputation for working relatively well with state regulators, an asset as EPA’s relations with states has become an issue of concern.

If nominated, McCarthy will likely face a heated confirmation battle, with Republican opposition to various EPA policies and actions highlighted at her confirmation hearing. If confirmed, McCarthy can be expected to continue or increase EPA’s prioritization of climate issues, in light of her strong climate policy background. However, the regulated community and other stakeholders should be prepared for management of chemical risks to continue as a focus under the new Administrator as well. Even with a protracted confirmation process, EPA’s operation and issuance of new rules can continue without hindrance under Acting Administrator Bob Perciasepe for as long as needed.

The Acting Assistant Administrator for the Office of Chemical Safety and Pollution Prevention (OCSPP) is Jim Jones. His nomination for the Assistant Administrator position has been pending before the previous Senate since early 2011. He is likely to be re-nominated. His continuation would reinforce expectations for generally more of the same in terms of EPA’s chemicals management policies and priorities.

B.  Work Plan for Chemical Risk Assessment

Stakeholders are closely watching EPA’s first five work plan chemical risk assessments, drafts of which were released in January 2013 (with a comment period open through March 11, 2013).[4]The drafts, focusing either on human health or ecological hazards for specific uses, tentatively concluded the following:

  • Antimony trioxide as a synergist in halogenated flame retardants: low concern for ecological health;
  • 1,3,4,6,7,8-Hexahydro-4,6,6,7,8,8,-hexamethylcyclopenta-[?]-2-benzopyran as a fragrance ingredient in commercial and consumer products: low concern for ecological health;
  • Methylene chloride or dichloromethane in paint stripper products: potential concern for human health;
  •  N-methylpyrrolidone in paint stripper products: potential concern for human health; and
  • Trichloroethylene as a degreaser and a spray-on protective coating: potential concern for human health.

EPA plans to begin finalizing the risk assessments in fall 2013, following the public comment period and peer review process. If the final assessments indicate significant risk, EPA will evaluate and pursue appropriate risk reduction actions; the nature of those actions is unclear. If no significant is risk indicated, EPA will conclude work on the chemical. EPA is also expected to release additional draft risk assessments in 2013, including ones for long-chain and medium-chain chlorinated paraffins as well as some of the 18 chemicals selected for assessment in 2013-2014.[5]

EPA’s work plan will drive review and decision-making on existing chemicals for the foreseeable future, absent a new chemicals management framework imposed by new legislation. It is therefore a top priority for OCSPP, as well as for a broad range of stakeholders who manufacture, process, or use chemicals that are in the 83 initially selected or that could be candidates for addition to the work plan in the future. However, concerns have been raised about the work plan, such as the level of peer reviews that the draft assessments will be given. In December 2012, a number of Senators recommended that the draft assessments be classified as “highly influential” in order to raise the level of rigor of the peer review.[6]

C.  Action Plan Chemicals and Other Chemical Risk Management Actions

Despite the shift to the work plan strategy, EPA will still be implementing its earlier Chemical Action Plans in 2013.

EPA’s most recent Regulatory Agenda[7]indicates that the Agency plans to finalize its controversial SNUR and test rule for certain polybrominated diphenylethers (PBDEs) in late 2013. As discussed in the companion report,[8]EPA proposed a significant new use rule (SNUR) in March 2012 to designate the manufacture (including import) or processing of the flame retardant decaBDE or articles containing decaBDE for any use which is not ongoing after the end of 2013 as a significant new use, requiring 90 days prior notification to EPA. Concurrently, EPA proposed a section 4 test rule to require any person who manufactures or processes commercial pentaBDE, octaBDE, or decaBDE, including in articles, for any use after the end of 2013 to conduct testing on their effects on health and the environment. EPA did not identify any ongoing uses, leaving that task to industry. The proposal is also notable in its focus on articles. PBDEs and other flame retardants are sure to continue to be a hot topic at EPA in 2013 and beyond, as are issues relating to the use of TSCA to regulate chemicals in articles.

EPA also intends to propose a SNUR in summer 2013 for the action plan chemicals nonylphenols and nonylphenol ethoxylates, which are used in detergents and other applications. EPA had previously proposed to issue both a SNUR and a test rule for these chemicals, in response to a citizens’ petition under TSCA, but its SNUR-only action apparently replaces the previous plan in the Agency’s Regulatory Agenda. Also in summer 2013, EPA plans to finalize SNURs for the action plan chemicals hexabromocyclododecane, glymes, and benzidine-based dyes, and a section 8(d) health and safety data reporting rule for diisocyanates including TDI and MDI. In fall 2013, EPA plans to finalize a SNUR for perfluoroalkyl sulfonates and long-chain perfluoroalkyl carboxylates used in carpeting.

A number of chemical management items from the Fall 2011 Regulatory Agenda were not present in the Fall 2012 Regulatory Agenda. Among the items dropped were a test rule for certain nanoscale materials; the proposal to place chemicals on the Chemicals of Concern list under TSCA section 5(b)(4); and long-term actions relating to short-chain chlorinated paraffins and long-chain perfluorinated chemicals.

EPA continues to issue SNURs for a variety of other chemicals (96 so far in fiscal year 2013), particularly for those that cover chemicals that recently entered commerce. Believing that such chemicals should be subject to the same manufacturing restrictions the original manufacturer has agreed to abide by, EPA is continuing to work through a backlog of SNURs based on TSCA section 5(e) consent orders.

Finally, EPA continues to analyze the potential use of TSCA section 6 to regulate chemicals. This authority has not been used since EPA’s attempt to ban asbestos was overturned by the Fifth Circuit Court of Appeals in 1991, but actions more limited and tailored than outright bans could receive more favorable judicial treatment.

In addition to these and other regulatory actions, EPA is also exploring a number of voluntary and incentives-based initiatives to promote green chemistry. On February 21, 2013, EPA announced that it is seeking nominations for the 2013 Presidential Green Chemistry Challenge Awards for companies and institutions that can design chemicals or a new product that can help protect public health and the environment.[9]EPA’s Office of Research and Development (ORD) also has a number of research projects relating to green chemistry, chemical safety and risk assessment, computational toxicology, and nanomaterials. ORD released its Chemical Safety for Sustainability Strategic Research Action Plan for 2012-2016 in June 2012, aiming to better incorporate recent advances, address emerging concerns, and develop integrated chemical evaluation strategies and decision-support tools.[10]

D.  Confidentiality and Transparency Policies

EPA’s policies for confidential business information (CBI) are a focus of attention for both existing and new chemicals. A long-watched proposed rule change targeting confidentiality claims for chemical identities in health and safety studies is no longer in EPA’s Regulatory Agenda, nor is there any direct replacement proposal. The former proposal would have built on a 2010 policy to increase review and limit CBI protections. A long-term action for reassertion and resubstantiation of CBI claims was also dropped from the most recent Regulatory Agenda. Going forward, it remains to be seen what CBI-related actions and strategies EPA will take instead.

EPA has proceeded with a number of other initiatives relating to transparency of data, information, and activities at the agency. EPA released the data collected in 2012 under the Chemical Data Reporting program on February 11, 2013, a quick turnaround enabled in part by the mandatory electronic reporting.[11]EPA claims that the most recent data set provides greater insight into chemical use patterns than previous chemical data reporting under the Inventory Update Rule, and that less information was claimed confidential.

EPA also plans to launch interactive online “dashboards” featuring data and modeling tools and annotated literature searches for chemicals.[12]The dashboards are intended to provide summary information derived from chemical exposure, hazard data, decision-rules and predictive models. Separate but related dashboard versions will be available for a number of different end goals, including TSCA prioritization and assessment (TSCA21), screening for potential endocrine disruption (EDSP21), and identification of priority chemicals for the EPA Office of Water’s chemical contaminant list (OW21). The dashboards are a project of the Chemical Safety for Sustainability Research Program, launched in early 2011 by ORD.[13]EPA has ambitiously accelerated its target dates for the dashboards, recently calling for completion of data source identification and case studies by the end of December 2012, beta-testing in mid-2013, and public release in September 2013.

I.  Conclusion

EPA’s chemicals management efforts in 2013 are taking place in the shadow of several larger trends and events in the federal government. EPA has faced increasing budgetary pressure. Acting Administrator Bob Perciasepe wrote to the Senate on February 6 that the sequester slated to take effect on March 1 “will force us to make cuts we believe will directly undercut our congressionally-mandated mission of ensuring Americans have clean air, clean water and clean land.”

More specifically for chemicals management, as described in an accompanying report,[14]TSCA modernization legislation is on the table once again in the current, 113th Congress, although it has not yet been introduced. While the absence of federal chemicals legislation continues, state-level regulations are proliferating. As of January 2013, the advocacy group Safer States counted at least 26 states considering new chemicals management policies in the near future.[15]

The regulatory developments described in this report are reshaping chemicals management in a variety of important ways, and they demand much of stakeholders to keep up with tracking, analyzing, and complying with them. Yet they are far from the only developments affecting chemicals and products along the supply chain across a wide range of industries and sectors. Other agencies at the federal and state level and their counterparts in other countries, international organizations, social and market trends, and even other businesses continue to apply pressures that affect companies’ chemical decision-making regarding chemical inputs, uses, management, and disposal. Regardless of the prospects for TSCA legislation, 2013 looks to be another momentous year for chemicals management in the United States.

For more information about these and other TSCA developments in Congress and at EPA, please contact Mark Duvall, mduvall@bdlaw.com, or Alexandra Wyatt, awyatt@bdlaw.com.

For a printable PDF of this article, please click here.


[1]See Beveridge & Diamond, P.C., “TSCA Developments at EPA: Looking Back at 2012” (Feb. 22, 2013), available at www.bdlaw.com/news-1445.html.

[2]See Beveridge & Diamond, P.C., “TSCA Modernization Proposals in Congress: Recent History and Prospects” (Feb. 25, 2), available at www.bdlaw.com/news-1447.html.

[3]See Beveridge & Diamond, P.C., “Update on TSCA Developments in Congress and at EPA” (March 22, 2012), http://www.bdlaw.com/news-1328.html; Beveridge & Diamond, P.C., “TSCA Developments in Congress and at EPA” (Aug. 11, 2011), http://www.bdlaw.com/news-1193.html.

[4]See generally EPA, TSCA Work Plan Chemicals, http://www.epa.gov/opptintr/existingchemicals/pubs/workplans.html.

[5]EPA, Work Plan Chemicals for Assessment During 2013 and 2014, http://www.epa.gov/opptintr/existingchemicals/pubs/workplanlist.html.

[6]Letter from Senators Vitter, Inhofe, Alexander and Crapo to EPA Acting Assistant Admin. James Jones (Dec. 21, 2012), available at http://www.scribd.com/doc/118863551/EPA-Senator-letter.

[7]EPA, Fall 2012 (Dec. 24, 2012), available at http://resources.regulations.gov/public/ContentViewer?objectId= 090000648119910f&disposition=attachment&contentType=pdf. The Fall 2012 Regulatory Agenda was issued after a delay and there was no Spring 2012 Regulatory Agenda, despite legal requirements to publish semiannually.

[8]See supra footnote 1.

[9]EPA Press Release, “EPA Calls for 2013 Presidential Green Chemistry Challenge Award Nominations” (Feb. 21, 2013), http://yosemite.epa.gov/opa/admpress.nsf/d0cf6618525a9efb85257359
003fb69d/d66ab2c9ff283b0585257b19005d0395!OpenDocument
.

[10]EPA doc. 601/R-12/006, Chemical Safety for Sustainability Strategic Research Action Plan for 2012-2016 (June 2012), available at http://epa.gov/research/docs/css-strap.pdf.

[11]EPA, Chemical Data Reporting, http://epa.gov/cdr/.

[12]EPA Office of Research and Development, Presentation on CSS Dashboard, available at http://epa.gov/ncct/download_files/
chemical_prioritization/CSS_DASHBOARD_Nov2012.pdf
.

[13]EPA, Chemical Safety for Sustainability Strategic Research Action Plan 2012-2016 (Doc. 601/R-12/006, June 2012), http://www.epa.gov/research/docs/css-strap.pdf.

[14]See supra footnote 2.

[15]Safer States, “26 States to Consider Toxic Chemicals Legislation in 2013” (Jan. 23, 2013), http://www.saferstates.com/2013/01/legislation.html.  

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