EPA announced on June 29, 2016, that asbestos and nine other chemicals will be reviewed for hazard and exposure risks under the new procedures of the Lautenberg Chemical Safety Act, the June 2016 amendment to the Toxic Substances Control Act. Now that the ten chemicals have been chosen, EPA must produce a risk evaluation work plan for the chemicals by June 2017 and must complete the evaluations within three years. If unreasonable risks are found, EPA must take action to mitigate the unreasonable risks.
In addition to asbestos, the other nine chemicals are:
- 1-Bromopropane, a solvent frequently used in adhesives
- 1,4-Dioxane, a stabilizer in solvents and in certain consumer products
- N-methylpyrrolidone, a solvent used in paint strippers, adhesives, and manufacturing
- Carbon Tetrachloride, a carcinogen that was once used commonly as a solvent
- Methylene Chloride, a paint stripper and degreaser
- Tetrachloroethylene, also known as perchloroethylene, a common dry cleaning solvent
- Cyclic Aliphatic Bromide Cluster, used as flame retardants
- Pigment Violet 29, a dark reddish-purple dye
According to EPA, the chemicals were chosen because of their prevalence as environmental contaminants; their widespread use, especially in consumer products; and their perceived or known hazards.
EPA issued a ban and rule to phase out the use of asbestos in 1989, but the rule was overturned on the grounds that EPA failed to provide an adequate justification for the complete ban. Corrosion Proof Fittings v. EPA, 947 F.2d 1201 (5th Cir. 1991). Various other EPA rules have diminished the uses of asbestos over the years, as TSCA reformers were particularly focused on forcing EPA to make decisions about substances like asbestos. The new safety review focuses on risks to human health and the environment. The Lautenberg Act replaced the old cost-benefit standard with a new health-based safety standard. EPA is required to promulgate use standards if it finds that asbestos poses an unreasonable risk. EPA is expected to impose additional restrictions, including a possible ban, on the entry of asbestos into U.S. commerce. The other nine chemicals are subject to the same process.
After years of effort, comprehensive legislation to reform the Toxic Substances Control Act (TSCA) passed the House of Representatives on May 24, 2016. The Frank R. Lautenberg Chemical Safety for the 21st Century Act is expected to pass the Senate the week of June 6. President Obama is expected to sign the legislation shortly thereafter. At that point, the Environmental Protection Agency (EPA) will begin its implementation of the new TSCA.
This alert first highlights key ways in which passage of TSCA amendments will impact industry. Next, it outlines the key changes that the legislation will make to TSCA. It then identifies those provisions of the bill as passed by the Senate in December 2015 that are retained in the bill as passed by the House on May 24 (thus expected to remain in the final Senate-passed version) and those provisions that are changed. Finally, it considers what is likely to happen in the early days of implementation of the new TSCA.
Note: Section references in this alert refer to TSCA as it will be amended by the legislation.
How Passage of TSCA Reform Legislation Will Affect Industry
Alone among major environmental statutes, TSCA had not been significantly amended since its enactment in October 1976, almost 40 years ago – until now. During much of that time, EPA has regarded TSCA’s principal control provision, section 6, as unworkable. As a result, EPA has not proposed any rulemaking under section 6 in 25 years, ever since a court invalidated the EPA ban on asbestos in 1991. Other aspects of TSCA have also shown their limitations.
Once enacted, this legislation will amend section 6 to make it much easier for EPA to evaluate and, if appropriate, regulate chemicals. The bill contains provisions mandating that EPA identify substances that are high priorities for risk evaluations; evaluate the health and environmental risks of those substances; decide, without regard to cost or other non-risk factors, whether a high-priority substance presents an unreasonable risk; and regulate those substances found to present an unreasonable risk under the conditions of use. All of these steps are subject to tight time deadlines. EPA must meet some quotas in the first five years. This means that industry can expect EPA to review more chemicals, to review them more systematically and thoroughly, and to regulate those chemicals that it finds to be in need of regulation.
On May 9th the United States Environmental Protection Agency (USEPA) initiated a process that may result in federal regulation of the fluids used in hydraulic fracturing(fracking). In the past 10 years, United States production of oil and gas has skyrocketed, due in part to the increased use of fracking technologies that use high‐pressure injection of fluids, sand, and chemicals to stimulate the release of oil and gas from geological formations which were difficult to access with other techniques. While fracking technologies have been in use for some time, environmentalists have argued that the public lacked adequate information to assess whether chemicals used in fracking posed represented threats to human health or the environment.
Last Friday, the USEPA issued an Advance Notice of Proposed Rulemaking under Section 8 of the Toxic Substances Control Act (TSCA) soliciting comment on whether companies must publicly disclose the chemicals used in the fracking process. The notice starts the public participation process and seeks comment on
- The types of chemical information that could be reported under TSCA;
- The regulatory and non-regulatory approaches to obtain information on chemicals and mixtures used in hydraulic fracturing activities;
- Whether fracking-related chemicals should be regulated through a voluntary mechanism under the Pollution Prevention Act of 1990.
According to the USEPA, this process will help inform its efforts to facilitate transparency and public disclosure of chemicals used during hydraulic fracturing and will not duplicate existing reporting requirements. James Jones, the USEPA’s assistant administrator for the Office of Chemical Safety and Pollution Prevention, said that the “EPA looks forward to hearing from the public and stakeholders about public disclosure of chemicals used during hydraulic fracturing, and we will continue working with our federal, state, local, and tribal partners to ensure that we complement but not duplicate existing reporting requirements.”
The notice includes a list of questions to be considered by stakeholders and the public in formulating their comments. The USEPA anticipates that the notice will publish in the Federal Register by the week of May 19, 2014. The comment period closes 90 days after publication in the Federal Register. When published, comments may be submitted through regulations.gov with reference to docket ID number EPA-HQ-OPPT-2011-1019.
The Prepublication Copy Notice can be found at http://www.epa.gov/oppt/chemtest/pubs/prepub_hf_anpr_14t-0069_2014-05-09.pdf and more information from the USEPA on hydraulic fracturing can be found at http://www2.epa.gov/hydraulicfracturing