Thank you to my colleague, Emilee Mooney Scott, for her contributions to this post. Emilee is an associate in our Environmental & Utilities Practice Group.
As we outlined earlier this year, the Toxic Substances Control Act (“TSCA”) was recently updated to provide EPA with much broader authority to regulate “existing” chemical substances (i.e., those that are already in use in commerce).
In general, EPA’s review of existing chemical substances under its new TSCA authority will follow these three steps:
- Prioritization: screening process to identify chemical substances that may pose an unreasonable risk of injury to health or the environment and designate them as “high priority” for further study.
- Risk Evaluation: evaluation of a high priority substance to evaluate whether it does in fact pose an unreasonable risk of injury to health or the environment.
- Risk Management: for substances that do present an unreasonable risk of injury to health or the environment, EPA will develop a rule to mitigate such risk.
In the TSCA reform bill, EPA was also directed to identify the first ten substances for risk evaluation (skipping over the prioritization step) by December of this year. EPA released that list on November 29. The first ten substances to be evaluated are:
- 1,4-Dioxane (solvent, stabilizer)
- 1-Bromopropane (solvent)
- Asbestos (wide variety of uses, e.g. building materials)
- Carbon Tetrachloride (precursor in refrigerant manufacturing, solvent)
- Cyclic Aliphatic Bromide Cluster (flame retardant)
- Methylene Chloride (solvent)
- N-methylpyrrolidone or “NMP” (solvent)
- Pigment Violet 29 (pigment)
- Tetrachloroethylene, also known as perchloroethylene or “perc” (dry cleaning)
- Trichloroethylene or “TCE” (solvent)
These substances were selected from EPA’s 2014 Update to the TSCA Work Plan for Chemical Assessments (“TSCA Work Plan”). As EPA identifies further chemical substances for prioritization and risk evaluation, it must select at least half of them from the TSCA Work Plan. By December of 2019, EPA must have at least 20 risk evaluations in progress at a time.
By June of 2017, EPA must publish the scope of the risk evaluations on each of the ten chemical substances above, which will trigger a public comment period allowing stakeholders to weigh in. The risk evaluations must be completed within three years (i.e., by December 2019) and if EPA determines that any of the substances pose an unreasonable risk to human health or the environment, then EPA must issue a risk management rule within two years of the completion of the risk evaluation. In short, while EPA has identified its first ten substances, the final rules resulting from this process are approximately five years away.
EPA Issuing Rules on TCE, NMP and methylene chloride
Separately, EPA had been using its pre-existing TSCA authority to evaluate risks posed by substances on the TSCA Work Plan. EPA is expected to release proposed rules on NMP and methylene chloride in the coming weeks. The proposed rule on TCE was issued on December 7. The proposed TCE rule would prohibit the manufacture, import, processing, and distribution in commerce of TCE for use in aerosol degreasing and for use in spot cleaning in dry cleaning facilities.
The fact that EPA has also identified TCE, NMP and methylene chloride for review under its new TSCA authority suggests that the new risk evaluations may address different use scenarios, and/or that EPA is providing itself some insurance in the face of a change in administrations.
So, what does this mean for you? You may wish to take a look at your chemical use to see if you use any of the ten chemical substances listed above, or any other chemical substances listed in the TSCA Work Plan. If you do use any TSCA Work Plan substances, watch for opportunities to provide comment as EPA develops the scope for its risk evaluation and any eventual risk management rule. Alternately, remain alert to opportunities to transition away from at-risk substances on your own time, before new regulations force a transition.