The new year promises to be a busy one in the chemical area. The U.S. Environmental Protection Agency (EPA) hit all of its new Toxic Substances Control Act (TSCA) marks in timely promulgating rules or taking other steps required by the new TSCA. TSCA developments we expect to monitor in 2018 include:
Fee proposal. The EPA likely will propose a rule soon to implement the fees provisions of TSCA Section 26(b).
Prioritization. We don’t expect the EPA to work significantly on prioritizing chemicals. However, there could be developments concerning the pre-prioritization process — a concept that wasn’t included in the final prioritization rule. The EPA noted that it hopes to implement a pre-prioritization approach by June 2018 to help ensure prioritization can begin in December 2018.
First ten chemicals for risk evaluation under amended TSCA. The EPA continued last year its risk evaluation work on the first ten chemicals selected under Section 6(b)(2)(A). The new TSCA requires the EPA to complete a risk evaluation for a chemical substance as soon as practicable, but no later than three years after the date on which the agency initiated the evaluation. This means the risk evaluation process for the first ten chemicals should be completed by December 2019; an extension of no more than six months is allowed. If the evaluation concludes that one or more condition(s) of use presents an unreasonable risk as defined under TSCA, the EPA must propose a risk management rule under TSCA Section 6(a) within one year of the completed risk evaluation and a final risk management rule one year later (within two years of the completed risk evaluation). The legislation includes provisions for extensions of no more than two years.
Existing chemical risk management. The significant new use rule (SNUR) on long-chain perfluoroalkyl carboxylate and sulfonate chemical substances is quite delayed. No discernable progress was made in promulgating this rule in 2017. Similarly, the proposed SNURs for nonylphenol and nonylphenol ethoxylates (NP/NPE rule) and toluene diisocyanate (TDI) will likely remain a low priority as the EPA works on the first ten chemicals and other high-priority rulemakings.
Anticipated proposal for changes to the Chemical Data Reporting (CDR) rule. The EPA is expected to issue proposed changes to the CDR rule in May 2018, with changes to be adopted for the 2020 CDR reporting cycle. The agency will be looking to adjust the categories used for reporting under industrial, commercial and consumer uses to achieve more-refined use information and better estimates of exposure potential. Should changes be adopted, this will be the fifth modification of reporting for this rule in five reporting cycles.
Inventory notification. Chemical manufacturers and importers were to complete reporting of “active” substances by February 7, 2018. As of publishing date, the EPA has indicated there’s no extension of this deadline; the statute limits the reporting period to 180 days. Stakeholders were cautioned to submit their notifications early, because the EPA’s Central Data Exchange has experienced operational problems related to high volumes of submissions during a short time period in past CDR reporting cycles. The EPA will soon issue an interim list of active substances following the reporting deadline, which processors can use as a basis for their active notification submissions due no later than October 5, 2018.
Processors likely won’t need to expend much effort, as the chemicals they use should have been reported during the manufacturer/importer reporting timeframe (an exception concerns the situation with chemicals that are only infrequently produced or imported and are stockpiled and drawn down over time by a processor). Processors that find themselves submitting multiple active notifications may wish to revisit their existing agreements with chemical suppliers and associated TSCA compliance obligations. The EPA states it will have the final active/inactive chemical lists reflected in the published TSCA Inventory as soon as practicable after the October processor reporting deadline, which we believe will be about two months, or sometime in December 2018.
Stay tuned. All these developments are important and will impact significantly chemical processor business practices.
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). The views expressed herein are solely those of the author. This column is not intended to provide, nor should be construed as, legal advice.