Implementing the 2016 TSCA Amendments – Progress & Prognosis

Verdant Attorney Irene Hantman will speak on Wednesday, February 22 at a panel discussion among experts on implementing the Frank R. Lautenberg Chemical Safety for the 21st Century Act, which amends the Toxic Substances Control Act (TSCA). The program includes a panel of legal experts, current and former EPA officials, and representatives from environmental NGOs and trade groups. The panel will discuss topics including:

  • The potential effects of the change in Administration
  • Congress’ oversight role
  • Regulatory actions already taken by EPA
  • Regulatory actions required during 2017

The program includes an informal brown bag lunch for in-person participants in Washington, D.C., as well as dial-in participation. If attending in person, please RSVP to Gina Dean at; teleconference information is forthcoming. This event is sponsored by the Pesticide, Chemical Regulation, and Right-to-Know Committee of the ABA Section of Environment, Energy, and Resources (SEER), with co-sponsorship by the Environmental Law Institute and SEER’s Special Committee on Congressional Relations, and hosted by Arnold & Porter Kaye Scholer LLP.

Please see the announcement [PDF] for more details.


Location: Arnold & Porter LLP, 601 Massachusetts Avenue, NW, Washington, DC 20001

Arrival Time: 11:45 am; plan to arrive in advance to check in and pass through security; the dialogue will begin promptly at noon and will conclude at 2:00 pm.

Moderator: Larry Culleen, Partner, Arnold & Porter Kaye Scholer LLP


  • Jim Jones, Former Assistant Administrator, US EPA [invited]
  • Wendy Cleland-Hamnet, Office Director, Office of Pollution Prevention & Toxics, US EPA
  • Mike Walls, VP Regulatory & Technical Affairs, American Chemistry Council [invited]
  • Richard Denison, Lead Scientist, Environmental Defense Fund
  • Ernie Rosenberg, President & CEO, American Cleaning Institute
  • Lynn Bergenson, Managing Partner, Bergeson & Campbell
  • Martha Marrapese, Partner, Keller & Heckman
  • Irene Hantman; Verdant Law


The Trump Administration’s regulatory freeze and its effects on TSCA.

On January 20, the new White House Chief of Staff Reince Priebus released a memorandum to agency and department heads announcing a freeze on new or pending regulations. The agencies and departments are asked to not send any regulation to the Office of the Federal Register until a Presidential appointee/designate reviews and approves it. The Office of Management and Budget (OMB) Director can make exceptions to the freeze for “emergency situations or other urgent circumstances relating to health, safety, financial, or national security matters, or otherwise.” The freeze is similar to one put in place by President Obama upon his inauguration in 2009.

In addition, the White House requested the withdrawal of submissions to the Federal Register that have not yet been published. The memo also asks for the temporary postponement of rules that have already been published but have not yet taken effect. The effective date of those rules would be postponed “for 60 days from the date of this memorandum …for the purpose of reviewing questions of fact, law, and policy they raise.” Both the withdrawn and postponed rules would be subject to the same exceptions for emergencies and urgent circumstances as for new rules. Agency and department heads are instructed to consider proposing for notice and comment further delays beyond the 60-day period, or further notice-and-comment rulemaking.

The memo specifically excludes “any regulations subject to statutory or judicial deadlines,” and asks that such exclusions be identified to the OMB Director. Agency and department heads are also asked to notify the OMB Director of any regulations that should be excluded from the freeze because they “affect critical health, safety, financial, or national security matters, or for some other reason.”

As we have discussed on this blog, the Frank R. Lautenberg Chemical Safety for the 21st Century Act, which modernizes the Toxic Substances Control Act (TSCA), requires that EPA promulgate a variety of implementing regulations. EPA has already proposed and finalized several of these implementing rules in recent months. Most of these actions should be excluded from the announced regulatory freeze, as they are subject to deadlines specified in the Lautenberg Act. However, while EPA had planned to develop a proposed rule on new fees by mid-December, that rule has yet to be released and is not subject to a statutory deadline. EPA had set finalizing the fees rule as a goal for mid-June 2017, but the final rule is also not required by statute, although the agency’s First Year Implementation Plan notes that
“authority to require fees will be needed ASAP.”

The regulatory freeze seems likely to affect the nanoscale reporting and recordkeeping rule which was finalized earlier this month. Although that rule’s effective date is not until May 12, 2017, EPA may consider delaying the effective date or re-opening the rulemaking process to review questions of fact, law, or policy.

EPA Issues Proposed Rule on TSCA Inventory “Reset”

According to the EPA, there are currently over 85,000 chemicals on EPA’s Toxic Substances Control Act (TSCA) Chemical Substance Inventory (Inventory), many of which are no longer actively produced. On January 13, 2017, the EPA published a proposed rule to reset the TSCA Inventory into separate lists of “active” and “inactive” substances (i.e., inventory reset). EPA is proposing to require use of the Agency’s electronic reporting portal, Central Data Exchange (CDX), for notification under this rule. The proposal details notification requirements and establishes exemptions and procedures for handling confidentiality claims.

The notification, to be entered into CDX no later than 180 days after the final rule is published, is retrospective in nature and is required for substances listed on the Inventory and that were manufactured or imported into the U.S. for non-exempt commercial purposes in the last ten years (between June 21, 2006 and June 21, 2016). Notifications for substances that were “processed” during this period would not be required, however, the proposal allows processors to report no later than 360 days after the final rule is published.

Properly notified substances would be designated by EPA as “active,” whereas substances without a valid notification would be designated as “inactive.”

Once designated, “inactive” substances could not properly be manufactured, imported, or processed for a non-exempt commercial purpose under TSCA. Thus, EPA also is proposing “forward-looking” procedures for notifying inactive substances if and when non-exempt manufacture, import, or processing would resume in the future. Properly notified substances would be converted by EPA to “active” substances.

TSCA Section 8 requires EPA to compile an “interim list” of active substances before promulgation of the final rule. The proposed rule would not require manufacturers to report chemical substances that are on the “interim list.” Indeed, in the proposal, manufacturers and processors of chemical substances on the non-confidential portion of the Inventory would be exempt from reporting if the manufacture of that chemical substance was already reported (by any party) in response to 2012 or 2016 Chemical Data Reporting (CDR).

Comments on the proposal must be received by March 14, 2017.

EPA Publishes Final TSCA Reporting and Recordkeeping Rule for Nanoscale Materials

On January 12, 2017, EPA published a final rule under Section 8(a) of the Toxic Substances Control Act (TSCA) establishing reporting and recordkeeping requirements for certain chemical substances that are manufactured or processed at the nanoscale. Manufacturers and processors, or persons who intend to manufacture or process new discrete forms of certain existing chemical nanoscale materials not previously reported to EPA, must also report certain information to EPA prior to manufacture or processing. The information to be reported includes the specific chemical identity, production volume, methods of manufacture and processing, exposure and release information, and existing information concerning environmental and health effects. There is no independent requirement to test materials to find this information, but manufacturers and processors must use information that is known to or reasonably ascertainable by them when reporting.

Persons who manufacture or process a discrete form of a reportable chemical substance at any time during the three years prior to the effective date of the final rule must report to EPA one year after the effective date of the final rule. There is also a standing one-time reporting requirement for persons who intend to manufacture or process a new discrete form of a reportable existing chemical substance on or after the effective date of the rule. These persons are required to report to EPA at least 135 days before manufacture or processing of that discrete form with certain exceptions. The final rule will be effective on May 12, 2017.

EPA Proposes to Limit the Use of Two Toxic Chemicals in Paint Removers

The EPA is proposing to place limits on the use of two common chemicals in paint removers in order to protect consumers and workers from serious health risks associated with this use. The chemicals are methylene chloride and N-methylpyrrolidone (NMP).

In a 2014 assessment, EPA concluded that methylene chloride can cause a range of adverse health effects, including harm to the central nervous system, liver toxicity, and cancer. EPA is now proposing to prohibit manufacture (including import), processing, and distribution in commerce of methylene chloride when used as a paint remover, except for commercial furniture refinishing which the Agency will address in a separate proposal. EPA is also proposing to require manufacturers, processors, and distributors to notify retailers and others in their supply chains of the prohibitions.

EPA assessed NMP in 2015 and identified risks to people, particularly pregnant women and women of childbearing age, who have high exposure to NMP through paint or coating removal. EPA is inviting comments on two approaches to address the risks from NMP. One approach would prohibit manufacture (including import), processing, and distribution in commerce of NMP when used as a paint remover, as well as require various notification measures on the restrictions to downstream processors and users. The other approach would put in place a combination of requirements to address unreasonable risks, including limiting the amount of NMP in paint remover products, providing warning labels for consumers, and requiring workers to wear specialized gloves and other equipment. EPA is seeking comment on both approaches. In addition, EPA is proposing to exempt certain national security uses of methylene chloride and NMP from the requirements of this rule.

Comments on the proposed rule must be received 90 days after date of publication in the Federal Register.

Read the pre-published proposed rule here.

Global Supply Chain under the Paris Agreement: The Relevance of Chemical & Product Regulations

(Published in: Natural Resources & Environment, Volume 31, Number 3, Winter 2017 [Article PDF])

By Catherine K. Lin and Philip A. Moffat


The Paris Agreement commits all parties to make “nationally determined contributions” (NDCs) via domestic laws to limit “the increase in the global average temperature to well below 2 °C above pre-industrial levels.” This article considers how this “bottom up” approach to limiting greenhouse gases (GHG) emissions can interact with the operations of global supply chains, as the latter can exert profound effect on local and national development.

Aided by the theory of Transnational Legal Process, we propose that resilient global supply chains can be had under NDCs, if the scope of certain existing chemical- and product-oriented environmental regulations that already apply to global supply chains can be expanded to cover, as appropriate, GHG emissions, energy use, water conservation, and/or use of natural resources key to mitigating climate change impacts. This could include: (a) the principles of “no data, no market,” mandated supply chain communication, and the authorization for or restriction of the placing of deleterious substances or products on the market as exemplified by the EU Regulation on Registration, Evaluation, Authorization, and Restriction of Chemicals (REACH);(b) the restriction of certain raw materials from finished products as is under RoHS; and/or (c) the requirement that due diligence be performed to trace the source of certain problematic raw material as exemplified by Section 1502 of the Dodd-Frank Act.

If so enacted, enterprises and their suppliers may be encouraged to shore up environmental compliance up and down the supply chain, strengthening its resilience even in the absence of formal legal requirements to do so by all DNCs. As such, we would be less concerned that the bottom-up approach under the Paris Agreement could lead to a “race to the bottom” by countries seeking to implement NDCs that favor development over environmental protection or be a “free rider” by delaying their own NDC implementation while awaiting for other countries to curb GHG emissions. Instead, resilient, self-governing global supply chains could become fora for a transnational process where global norms for domestic laws on GHG reduction could emerge from the Paris Agreement.

The full publication can be viewed by signing into the ABA’s website.