The U.S. Environmental Protection Agency (EPA) expanded on June 12, 2018, the list of chemicals subject to reporting under the Emergency Planning and Community Right-to-Know Act (EPCRA) Toxics Release Inventory (TRI). The list now includes a category containing 13 nonylphenol ethoxylates (NPE). NPEs are nonionic surfactants used in a variety of industrial applications and consumer products including adhesives, wetting agents, emulsifiers, stabilizers, dispersants, defoamers, cleaners, paints and coatings. The final rule will apply for the reporting year beginning January 1, 2019, with the first reporting forms due July 1, 2020. This development will impact chemical stakeholders in a range of commercial applications, as explained below.
EPCRA Section 313 requires owners and operators of certain facilities that manufacture, process, or otherwise use listed chemicals in amounts exceeding the reporting threshold levels to divulge annually their environmental releases and other waste-management quantities of such chemicals. Under Section 6607 of the Pollution Prevention Act (PPA), these facilities also must report pollution prevention and recycling data for such listed chemicals. To add a chemical or chemical category to the Section 313 list, the EPA must demonstrate at least one of three criteria is met: acute human health effects, chronic human health effects or environmental effects.
On November 16, 2016, the EPA proposed listing NPEs as a category that would include 13 NPEs currently listed on the Toxic Substances Control Act (TSCA) Inventory. The agency proposed to add short-chain NPEs to the EPCRA toxic chemical list because they are believed to be highly toxic to aquatic organisms with toxicity values well below one milligram per liter. According to the EPA, while long-chain NPEs are not as toxic as short-chain NPEs, they “are known to become more toxic as they degrade in the environment to produce products that include highly toxic short-chain NPEs and nonylphenol.” The agency added nonylphenol (NP) to the list in 2014 based on toxicity to aquatic organisms as it “is even more toxic to aquatic organisms than short-chain NPEs.” Because long-chain NPEs are “a source of degradation products that are highly toxic to aquatic organisms,” the EPA states it “believed that the evidence was also sufficient for listing long-chain NPEs...pursuant to EPCRA section 313(d)(2)(C) based on the available ecological toxicity and environmental fate data.”
The EPA decided to add the category because it “determined that longer-chain NPEs can break down in the environment to short-chain NPEs and NP, both of which are highly toxic to aquatic organisms.” The agency thus determined that NPEs meet Section 313(d)(2)(C)’s toxicity listing criteria.
The decision to require TRI reporting for NPEs has resulted in the first rule promulgated that’s derivative of the EPA’s nonylphenol/nonylphenol ethoxylate (NP/NPE) Action Plan. The TRI NPE category includes the linear alkyl identities that the EPA argued in the NP/NPE Significant New Use Rule (SNUR) are not in commerce. Inclusion of NPEs for TRI reporting reflects the EPA’s concern for the aquatic toxicity of short-chain and longer-chain NPEs. The EPA reiterated its justification for including long-chain NPEs based on the fact that degradation products are “a direct result of the chemical properties of the parent compound that determine its environmental fate, and as such should be considered part of the chemical's toxicity.” The EPA concluded that long-chain NPEs cause “‘or may reasonably be anticipated to cause’ the relevant adverse” environmental effects.
The NPE reporting, along with the NP reporting already required, will give the EPA a more complete picture of NP in the environment, regardless of whether the NP was directly released or formed as a result of NPE degradation. EPCRA reporting could hasten the need to reformulate products containing these substances, as chemical stakeholders may not wish to add to their Section 313 reporting burden and may be tempted to phase-out or reduce NPE production. Other factors may be influential in addition to the reporting burden. For example, chemical producers may be more cognizant of concerns with claims of liability for alleged environmental degradation associated with NPEs released into the environment. For these reasons, entities that rely upon these substances from suppliers for their product formulations may wish to coordinate with their suppliers and otherwise be aware of the implications of this regulatory action. The rule is effective on November 30, 2018.
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.