TSCA Inventory Reset Deadline Is Approaching

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The TSCA Inventory Reset process is designed to identify which listed chemical substances are and which are not actively used in commerce. Substances identified as “in commerce” will be placed on the “Active Inventory.” Substances not currently in commerce will be placed on the “Inactive Inventory.” Companies will not be able to lawfully manufacture, import, or process any chemical substance on the “Inactive Inventory” without first notifying the substance to EPA.

The rule establishes “retrospective” (as well as “forward-looking”) reporting requirements. During the initial retrospective reporting period, companies must report on each Inventory-listed substance that they manufactured or imported for a non-exempt purpose during the ten-year look back period (June 21, 2006 and June 21, 2016). The deadline for this reporting period is February 7, 2018.

A subsequent reporting period, beginning April 9, 2018, is designated for reporting by processors. Companies may report substances that they processed during the ten-year look back period if the substances are not already on EPA’s Active Inventory or Interim Active Inventory.

EPA Releases the 2018 Plan for Chemical Risk Evaluations under TSCA

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As required under the Frank R. Lautenberg Chemical Safety for the 21st Century Act, EPA has released its annual plan for chemical risk evaluations. The annual plan identifies the next steps for the first 10 chemical reviews currently underway, and describes EPA’s work in 2018 to prepare for future risk evaluations.

EPA was required to initiate ten risk evaluations in 2016, and is required to initiate at least 20 more within 3 years after enactment of the Lautenberg Act, or by December 2019. EPA designated the first ten chemical substances on December 19, 2016. By the end of 2018, the EPA will initiate prioritization for 40 chemicals – at least 20 Low-Priority and 20 High-Priority candidates. By December 22, 2019, EPA will designate 20 substances as Low-Priority and initiated risk evaluations on 20 High-Priority substances.

In order to support these risk evaluations and other key aspects of TSCA implementation, EPA stated that it will be proposing a draft TSCA Fees Rule in early 2018, which will provide estimates of the resources required to undertake risk evaluations.

EPA Rescinds MACT “Once In Always In” Policy

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In late January, EPA issued a guidance memorandum rescinding the agency’s prior policy that once a source becomes a major source subject to a maximum achievable control technology (MACT) standard under section 112 of the Clean Air Act (CAA), it cannot be reclassified later as an area source not subject to MACT. The prior policy, known as the “once in always in” policy, dates from guidance issued in 1995. Under the new policy, a major source can become an area source if it takes an enforceable limit on its potential to emit (PTE) hazardous air pollutants (HAP) below the major source thresholds (i.e., 10 tons per year (tpy) of any single HAP or 25 tpy of any combination of HAP). A source that was previously classified as major, but which so limits its PTE, will no longer be subject either to the major source MACT or other major source requirements that were applicable to it as a major source under CAA section 112.

The legal basis for this action is that the “once in always in” policy contradicts the plain language of the definitions of “major source” in CAA section 112(a)(l) and “area source” in CAA section 112(a)(2). EPA has twice proposed to rescind the policy since it was adopted in 1995, but neither proposal was finalized. The new guidance rescinding the prior policy is effective immediately. EPA also will take comment on a rulemaking proposal to codify the new policy, to be published at a later date. Several opposition groups have announced their intention to file lawsuits seeking to overturn the new policy.

UK to Publish a new Chemicals Strategy

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The UK recently issued A Green Future: Our 25 Year Plan to Improve the Environment.  The document sets out a UK plan “to help the natural world regain and retain good health.”  The plan states that the government will publish a new Chemicals Strategy to tackle chemicals of national concern that will build on existing approaches. This new strategy will set priorities for action and detail how goals will be achieved.  According to A Green Future, the plan will also support collaborative work on human biomonitoring, address combination effects of different chemicals and improve the way the government tracks chemicals across supply chains.

 

A Green Future commits the UK to the following actions:

  • Publish an overarching Chemicals Strategy to set out its approach as the UK leaves the EU.
  • Explore options to consolidate monitoring and horizon-scanning work to develop an early warning system for identifying emerging chemical issues.
  • Consider how to address tracking chemicals in products to reduce barriers to recycling and reuse whilst preventing a risk from harmful chemicals.
  • Work internationally to strengthen the standardization of methods that assess chemical safety to identify and share information on emerging concerns and new approaches to risk assessments.

NRDC Petitions 2nd Circuit to Review EPA’s New Chemicals Decision-Making Framework

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On January 5, 2018, the Natural Resources Defense Council (NRDC) filed a petition for review with the United States Court of Appeals for the Second Circuit, asking that the court review “a final rule of the U.S. Environmental Protection Agency (EPA) entitled New Chemicals Decision-Making Framework:  Working Approach to Making Determinations under Section 5 of TSCA.”  A stay was not filed with the petition.

On its website, NRDC asserts that it filed the petition to overturn the Agency’s “Framework” “because it is both unlawful under TSCA and was adopted without the minimum legal requirements for ‘rules.’”

The case is Natural Resources Defense Council v. U.S. Environmental Protection Agency, 2d Cir., No. 18-25

Safer Consumer Products Schedules Public Hearing on its Proposal to List Paint or Varnish Strippers Containing Methylene Chloride as a Priority Product

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A public hearing on California’s Safer Consumer Product’s third proposed Priority Product regulation will be held on January 8, 2018. The hearing will begin at 1:00 PM in the Sierra Hearing Room at the CalEPA Building, located at 1001 “I” Street, Sacramento, California, and remain open until 5:00 PM or until no attendees present testimony, whichever occurs first. Prior to attending the meeting, all visitors are required to sign in at the Visitor and Environmental Services Center, located inside the main entrance of the building.

The comment period for the proposed regulation closes on January 18, 2018. Any interested person(s) may submit written comments relevant to the proposed regulatory action to DTSC in either electronic or hard-copy formats. Written comments may be submitted electronically through CalSAFER, the Safer Consumer Products information management system.

Hard-copy written comments may be delivered to:

Proposed Regulations
Office of Legal Affairs
Department of Toxic Substances Control
1001 “I” Street
Sacramento, California 95812-0806

EPA Offers Free Training On the Hazardous Waste Generator Improvements Rule

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EPA’s Office of Resource Conservation and Recovery (ORCR) will hold a free full-day workshop on the 2016 Hazardous Waste Generator Improvements Final Rule. The workshop will be held on Wednesday, February 7, 2018, in Arlington, VA, from 8:30 to 3:00 PM. The workshop will cover all the major provisions of the rule, looking at regulatory text and common implementation questions that have come up since the rule was issued in final. During the workshop EPA will answer following questions:

  • Which components of the hazardous waste generator regulatory program were revised?
  • Which gaps in the regulations were addressed in this rule?
  • What flexible options are provided by this rule for hazardous waste generators to manage their hazardous waste in a cost-effective and protective manner?
  • How were the hazardous waste generator regulations reorganized to make them more user-friendly and thus improve their usability by the regulated community?

The workshop will be held at EPA’s Conference Center in the Potomac Yard building in Arlington, VA. Click here to register online.

EPA Semiannual Regulatory Agenda Postpones Regulation of Methylene Chloride, NMP, and TCE

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The EPA Fall 2017 Regulatory Agenda defers Agency action on three chemicals for which the proposed rules had indicated bans would be forthcoming:

  • Methylene chloride in paint strippers,
  • N-methylpyrrolidone (NMP) in paint strippers, and
  • Trichloroethylene (TCE) as a spot cleaner in dry-cleaning and as a degreasing agent.

The rulemakings are listed as “long-term actions” and will be issued “to be determined” in the Semiannual Regulatory Agenda.   EPA has not explained the reason for the deferrals.   Proposed regulations for methylene chloride and NMP were issued in January 2017.  Further information on EPA’s past actions regarding methylene chloride can be found here. Further information on EPA’s past actions regarding NMP can be found here.  Proposed regulations for TCE were issued in December 2016 and January 2017.  Further information on EPA’s past actions regarding the substance can be found here.

The rulemakings were developed under section 6(a) of the Toxic Substances Control Act (TSCA).  They address uses of the chemicals identified to be of concern in risk assessments published prior to the Lautenberg amendments to the statute.  In addition to the proposed rules on these uses of concern, all three chemicals are also are among the first substances selected for risk evaluation under the Lautenberg amendments.  EPA is required to complete each of those risk evaluation within 3 years of its initiation.  (The amendments also allow the Agency two years after each risk evaluation is published to issue final rules restricting the uses of chemicals that present an unreasonable risk of injury to health or the environment.)  A larger set of uses than those identified above will be considered in the forthcoming risk evaluations.  However, EPA has been sued over the final rule for the risk evaluation process.  One issue challenged in that litigation is the scope of uses that will be addressed by the process.  That litigation is ongoing.

OEHHA Amends Proposition 65 Clear and Reasonable Warning Regulations

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The Office of Environmental Health Hazard Assessment (OEHHA) received numerous inquiries related to the interpretation and application of several provisions of the August 2016 amendments to the Article 6 Clear and Reasonable Warnings regulations. OEHHA determined that clarification of certain provisions of the new regulations “would be beneficial to the regulated community.” As such, on December 6, 2017, OEHHA issued a notice alerting stakeholders that amendments were approved. The proposed amendments are intended to further clarify the guidance OEHHA provides to businesses to better understand how to comply with the warning requirements.

There are some changes worth mentioning. First, OEHHA eliminated the term “on-product” warning and replaced the term as “short form” warning. It must be noted that there are no substantive changes to the content of the short form warning. Second, OEHHA revised the definition of “label” to indicate that a label can be “printed on or” affixed to a product or its immediate container or wrapper. This change is intended to clarify that there is no requirement to place a separate label with the warning on the product if the warning is printed on the product or the immediate container or wrapper. Third, OEHHA also has revised the definition of “labeling” to delete the reference to “tags at the point of sale or display of a product” because tags are a form of signage, not labeling.

For more information, visit OEHHA’s website here.

EPA Announces Cross-Agency Effort to Address PFAS

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On December 4, 2017, the EPA announced a “a cross-agency effort to address per and polyfluoroalkyl substances (PFAS).”  The press release notes that the PFAS effort will include perfluorooctanoic acid (PFOA) and perfluorooctane sulfonate (PFOS), as well as GenX, a substance developed as a replacement for the older chemicals.

The Agency pledged to:

  • Identify a set of near-term actions to help support local communities;
  • Enhance coordination with states, tribes and federal partners to provide communities with critical information and tools to address PFAS;
  • Increase ongoing research efforts to identify new methods for measuring PFAS and filling data gaps; and
  • Expand proactive communications efforts regarding PFAS and their health effects.

However, the Agency did not promise to take regulatory action.

The EPA issued Significant New Use Rules (SNURs) for PFOS-related substances in 2002.   It also issued a SNUR for the use of perfluorinated chemicals in carpets and carpet aftercare products in 2013.  In addition, the Agency partnered with manufacturers in the US and globally to reduce or eliminate use of PFASs.  U.S. companies voluntarily phased out producing the chemicals between 2000 and 2002.  Foreign companies achieved a 95 percent reduction in PFOA and PFOA-related chemicals in the emissions from their facilities and in their products.

The EPA has also published drinking water health advisories for PFOA and PFOS.

More information about the Agency’s efforts regarding these substances can be found here.