Since President Obama won on November 6, the forecast for chemical processors is a bit clearer. This article offers some preliminary observations on what lies ahead regarding chemical management issues at the legislative and regulatory levels.
Chemical Reform Legislation
Stakeholders agree on the concept of Toxic Substances Control Act (TSCA) reform, but lack alignment on the details. This hasn't changed post-election. The House remains under Republican control. The Democrats held on to the Senate, but both chambers lost moderates, thus guaranteeing more of the same gridlock in Congress.
Environmental Protection Agency (EPA) administrator Lisa Jackson is expected to step aside. Assistant administrator Bob Perciasepe is her presumptive replacement, but other names are being circulated. Jim Jones should become (either as a recess appointee or upon full Committee confirmation) acting assistant administrator for Toxics. Jones, who has proven to be a capable, respected and effective leader, likely will pursue the enhanced chemical management agenda and continue to rely upon innovative and sometimes aggressive interpretations of TSCA to achieve the agency's policy goals.
The EPA's emphasis on Chemical Action Plans waned in 2012, both because of pushback from stakeholders and the demand they place on limited available Office of Pollution Prevention and Toxics (OPPT) resources. EPA is expected to abandon them entirely, and pursue its review of targeted chemicals. On June 1, 2012, EPA announced an additional 18 chemicals scheduled for assessment during 2013 and 2014. Reviews of five chemicals from the first batch should come out before the end of the year, followed by a public peer review process.
The fate of other rulemaking initiatives is unclear. Several important actions remain pending at the Office of Management and Budget (OMB). EPA submitted a proposed rule regarding TSCA Section 8(a) reporting to OMB on November 22, 2010, where it remains. EPA's February 13, 2012, Regulatory Agenda states that the agency intends to combine the TSCA Section 8(a) rulemaking with a significant new use rule (SNUR) for nanoscale materials. The SNUR would require manufacturers of nanoscale substances to obtain EPA approval of uses of existing nanoscale substances deemed significantly new, and to identify existing nanoscale substances that share the same molecular identity as their conventionally-sized counterparts listed on the TSCA Inventory as a "category" of chemical substances. More recently, OMB concerns have apparently caused EPA to reconsider its approach.
EPA in 2012 turned to SNURs as a potential administrative response to address chemical concerns. Its March 2012 proposed amendments to the polybrominated diphenylethers (PBDE) SNUR are noteworthy because EPA would include "processing" as a significant new use, in addition to more customary manufacturing and importing activities. EPA also broke new ground with the proposed inclusion within its scope of imported articles those containing pentaBDE, octaBDE, or decaBDE. EPA can be expected to continue its now routine use of SNUR authority.
State Regulatory Forecast
The absence of meaningful TSCA reform likely will result in new waves of state chemical and chemical product initiatives. In 2010, California's Department of Toxic Substances Control (DTSC) proposed, and re-proposed several iterations of its Safer Consumer Products regulations, implementing the California Green Chemistry Initiative. The latest version, issued in July 2012, includes as its core elements the identification of chemicals of concern and priority products that include these chemicals, the development of alternative assessments for chemicals of concern in priority products, and DTSC regulatory responses to alternatives assessments conducted by industry. DTSC recently announced it intends to revise the proposed regulations and issue them in final form by spring 2013. The proposed regulations will have broad implications for companies that manufacture consumer products in California and beyond.
2013 will be busy. The White House is re-energized, EPA is committed to enhanced chemical management, and the states are restless in failing to achieve TSCA reform. Chemical processors and others should focus on advocacy and ensure their product stewardship, compliance and business goals are aligned with all that we can expect to see over the next several years.
LYNN BERGESON is Chemical Processing's Regulatory Editor. You can e-mail her at [email protected]
Lynn is managing director of Bergeson & Campbell, P.C., a Washington, D.C.-based law firm that concentrates on chemical industry issues. The views expressed herein are solely those of the author.