2016 Presents Chemical Regulation Challenges

Legislation will focus on unfinished business, work plan chemicals and green chemistry efforts.

By Lynn Bergeson, regulatory editor

With one year to go in the Obama Administration, the Office of Pollution Prevention and Toxics (OPPT) continues to make progress on its agenda, although a number of significant and difficult challenges are teed up for 2016. The biggest wild card is the enactment of Toxic Substances Control Act (TSCA) reform legislation and its impact on U.S. Environmental Protection Agency (EPA) leadership and OPPT staff in potentially undertaking the hard work of implementing TSCA reform legislation.

The Office of Pollution Prevention and Toxics will have its hands full.

Unfinished Business

Aside from possible TSCA reform implementation, OPPT will have its hands full. Unfinished business before OPPT in 2016, particularly regarding significant new use rules (SNUR), includes promulgating final SNURs on the long-chain perfluoroalkyl carboxylate (PFAC) and perfluoroalkyl sulfonate (PFAS) chemicals and toluene diisocyanates. In addition, there are yet-to-be-final SNURs on certain nonylphenols/nonylphenol ethoxylates and polybrominated diphenylethers (PBDE), including decaBDE (this action, proposed in April 2012, also includes a TSCA Section 4 test rule). Many of these rules present complex issues; OPPT is likely to struggle as it reconciles the many comments it received and determines its approach in the final rules. Several of these SNURs also include that pesky issue of including imported articles within the rule’s scope. We look to further evolution of OPPT’s approach to this issue in 2016 (relevant expected actions include the SNURs on long-chain PFAC/PFAS and PBDE chemicals). Another open item is an expected proposed rule for Sections 8(a)/8(d) reporting on oil and gas production (i.e., fracking) chemicals (this was the subject of a citizens’ petition filed in 2011 under TSCA Section 21).

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In 2016, we also will see the second iteration of reporting under the updated TSCA Section 8(a) chemical data reporting rule. The rule contains some important changes from the requirements in 2012, including reducing the reporting threshold from 25,000 lbs/year at a site to 2,500 lbs/year at a site for chemicals subject to any of several TSCA actions (e.g., test rules, pending or final SNURs, and Section 5(e) consent orders, among others) and requiring if a chemical triggers reporting between 2012 and 2015, the reporting must include data for each of the four years.

Work Plan Chemicals

The work plan, updated in 2014, contains approximately 90 existing chemical entries; to date, OPPT has initiated assessments on 14 chemicals/clusters. Progress includes completed risk assessments on five chemicals (three proceeded to risk management and two were dropped from further review — antimony trioxide and the fragrance ingredient 1,3,4,6,7,8-Hexahydro-4,6,6,7,8,8-hexamethylcyclopenta-[y]-2-benzopyran (HHCB)); four with ongoing risk assessments; one with a data needs assessment; and four cases in the initial assessment stage. Chemicals proceeding to risk management include paint removers N-methyl pyrollidone and methylene chloride, and the chlorinated solvent trichloroethylene when used as a degreaser, stain remover in dry cleaning and spray fixative. The EPA is considering both voluntary and regulatory actions, including using TSCA Section 6(a) to manage the identified risks. We expect the EPA will propose Section 6 regulations on one or more of these chemicals this year, given that the Administration will change in 2017. It’s also likely the EPA will release risk assessment documents this year for one or more of these chemicals/clusters as part of an effort to demonstrate it can conduct and complete such assessments (and deal with problem formulation comments) in a timely way.

Green Chemistry

The EPA has emphasized the need for greater progress in green chemistry and Design for the Environment (DfE). Tangible progress was realized when, in February 2015, the new Safer Choice label was unveiled to generally but not universally positive reviews. OPPT also announced the inaugural Safer Choice Partner of the Year Awards in 2015; 2016 winners will be announced in the spring. The DfE Safer Choice program also aims to add hundreds of chemicals to the Safer Chemical Ingredient List. Efforts to increase visibility and market adoption of award-winning green chemistry technologies remains a priority of OPPT management, although limited resources have hampered activity. We expect these efforts to continue to grow in 2016 and encourage clients and friends to look carefully into these opportunities.


bergeson-color.jpgLYNN BERGESON is Chemical Processing's Regulatory Editor. You can e-mail her at lbergeson@putman.net


Lynn is managing director of Bergeson & Campbell, P.C., a Washington, D.C.-based law firm that concentrates on conventional, biobased, and nanoscale chemical industry issues. She served as chair of the American Bar Association Section of Environment, Energy, and Resources (2005-2006).

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