EPA Allows More Input on TSCA Risk Evaluation Process

On Monday, EPA reopened the public comment period on the Agency's December 2016 notice designating ten chemical substances for initial risk evaluations under the Toxic Substances Control Act (TSCA).  Comments may now be made until March 15, 2017.  EPA is soliciting comments on the scope of TSCA risk evaluations to be conducted for ten specific chemicals.  U.S. companies using or importing these substances should evaluate the possible impact of potential increased TSCA regulation of these substances on their business and consider submitting comments as warranted.
The ten chemicals are:

  • 1,4-Dioxane
  • 1-Bromopropane
  • Asbestos
  • Carbon Tetrachloride
  • Cyclic Aliphatic Bromide Cluster (HBCD)
  • Methylene Chloride
  • N-Methylpyrrolidone (NMP)
  • Pigment Violet 29 (Anthra[2,1,9-def:6,5,10-d'e'f']diisoquinoline-1,3,8,10(2H,9H)-tetrone)
  • Trichloroethylene (TCE)
  • Tetrachloroethylene (also known as perchloroethylene)

This action extends the close of the public comment period from March 1, 2017 to March 15, 2017.  It also reopens the comment period for the dockets of each of the ten chemicals. 

These chemicals are used in a wide range of consumer, commercial, and industrial products.  They were initially designated by EPA as required by the 2016 TSCA amendments known as the Frank R. Lautenberg Chemical Safety for the 21st Century Act.  Those amendments (designed to give EPA greater authority over potentially dangerous chemical substances while requiring EPA to systematically prioritize and assess substances and their risks) require EPA to designate ten chemicals within six months of their enactment.

EPA has already moved forward with a risk evaluation for TCE.  On December 7, 2016, the Agency promulgated a proposed rule under TSCA Section 6 to prohibit the manufacture, processing, distribution, and commercial use of TCE within aerosol degreasers and spot cleaning products for dry cleaners.  See 81 Fed. Reg. 91,592.  The proposal would also require TCE manufacturers, processors, and distributors to notify subsequent TCE recipients of the ban.

EPA's proposed TCE prohibitions are the Agency's first attempt in 27 years to use its TSCA Section 6 authority to restrict the use of a chemical.  And the 2016 TSCA amendments now require EPA to complete risk evaluations for chemicals manufactured, processed, distributed, and imported into the United States under specific timetables. As a result, EPA's use of this authority to impose limitations on chemicals may become more frequent, particularly as to the above ten chemicals.

These actions were initiated prior to the start of the Trump Administration, and much remains unclear as to how Obama-era initiatives will be handled.  However, given the statutory mandates at issue, the prospect of increased TSCA regulation may be more real than it has been in a generation.  Thus, U.S. companies should:

  1. Evaluate what chemicals are used and/or manufactured at their facilities while also considering a chemical's life cycle and its downstream uses;
  2. Determine whether those chemicals will undergo an EPA risk evaluation;
  3. Consider the potential impact that a restriction under Section 6 may have; and
  4. If any impact is significant, participate in the risk evaluation process by submitting comments.

EPA's Notice was published at 82 Fed. Reg. 12,589 (March 6, 2017).  EPA's original Notice designating the above ten chemical substances was published at 81 Fed. Reg. 91,927 (Dec. 19, 2016).