EPA Announces Changes to the New Chemical Review Program

In the wake of the 2016 amendment to the Toxic Substances Control Act (TSCA), the Environmental Protection Agency (EPA) has been focusing on streamlining new chemical review. On August 7, 2017, the Agency announced several related changes to the new chemical review process. Major reforms include:

  • Where a Premanufacture Notice (PMN) raises risk concerns, EPA will allow manufacturers to submit an amended PMN to address those concerns, and will base its judgment on the amended PMN.
  • Where EPA has concerns with product uses that can reasonably be foreseen but are not the intended uses described in the PMN, EPA’s concerns can be addressed through significant new use rules (SNURs).
  • Identification of reasonably foreseen conditions of use that are not addressed in a PMN will be fact-specific. EPA will find that a use is reasonably foreseeable where facts suggest that the use is not only possible but probable.
  • Section 5 testing orders will be confined to cases where they are necessary to reduce uncertainty in “unreasonable risk” findings, and will be structured to reduce or replace animal testing where appropriate.

EPA also announced that it will increase the full-time staff for new chemical review and will streamline related work processes. In addition, to help companies prepare PMNs, EPA will institute a voluntary pre-submission consultation process to provide submitters with a clear understanding of what information will be most useful for EPA’s review of their new chemical submission, and of what they can expect from EPA during the review process. Further support for submitters will be available this fall. EPA announced that it will publish for public comment draft guidance to provide more certainty and clarity regarding how EPA makes new chemical determinations and what external information will help facilitate these determinations.

Overview of TSCA Inventory Reset

The Environmental Protection Agency (EPA) published the final rule establishing the process for TSCA “Inventory Reset” under the Toxic Substances Control Act (TSCA) on August 11, 2017. The final rule was effective as of the same day. The TSCA Inventory Reset process concerns chemical substances that are listed on the TSCA Inventory; it does not apply to every chemical substance in commerce, as many such substances are exempt from Inventory listing requirements. The Reset process is designed to identify which of the listed chemical substances are and are not actively in commerce. Inventory Reset is required by the Lautenberg amendments to TSCA.

Substances identified as “in commerce” will be placed on the “Active Inventory.” Substances not currently in commerce will be placed on the “Inactive Inventory.” Companies will not be able to lawfully manufacture, import, or process any chemical substance on the “Inactive Inventory” without first notifying the substance to EPA. The Active and Inactive Inventories will be created through “retrospective” reporting. Retrospective reporting requires companies to notify EPA regarding the non-exempt chemicals they manufactured or imported during the ten years prior to Lautenberg’s enactment (June 21, 2006 and June 21, 2016). Manufacturer/importer reporting began the day the final rule was published. Companies have 180 days to submit notifications. In addition, a subsequent 180-day reporting period, beginning April 9, 2018, is designated for reporting by processors. Companies may report substances that they processed during the ten-year look back period.

After retrospective reporting closes, EPA will formally establish the Active and Inactive Inventories. Once these Inventories are published, forward-looking reporting will be required before a company can lawfully manufacture, import, or process any chemical substance on the “Inactive Inventory.” In addition, EPA has designated the period between retrospective and forward-looking reporting as the “Transition Period.” The forward-looking reporting requirements are optional, but recommended, during this period.

Considerable effort to coordinate with the companies that manufacture and supply one’s raw materials will be required to ensure that these products remain available for use in the company’s commercial activities.

CDR Reporting Violations to Cost Ricoh Electronics $245,990

EPA recently settled its case against Ricoh Electronics, Inc., for inaccurate reporting and recordkeeping of chemical substances imported by its facilities located in Tustin and Santa Ana, CA, and Lawrenceville, GA.  Under the settlement, Ricoh Electronics will pay a fine of $245,990.

These violations were found when the Agency inspected the company’s Chemical Data Reporting (CDR) submissions.  EPA reports that in 2012, Ricoh filed a timely, but inaccurate, CDR report of the total annual volumes of three chemical substances imported in 2011 at its Tustin facility, and one chemical substance imported at its Santa Ana facility.  In addition, the Agency found that the company did not have records documenting the quantity of 10 chemical substances imported to its Lawrenceville, Ga., facility in 2015.

CDR reporting under TSCA requires the companies submit information to EPA regarding the chemical substances that they manufactured of imported at volumes of 25,000 pounds or more.  Reporting is only required for substances listed on the TSCA Inventory.  The submission period for the most recent CDR data collection ended in October 2016.  Reporting will not be required again until 2020.

EPA Announces Superfund Task Force Recommendations

Environmental Protection Agency (EPA) Administrator Scott Pruitt assembled a task force to provide recommendations on how to restructure and improve the Superfund cleanup process. On July 25, 2017, the Task Force announced its recommendations. The Task Force Report to Administrator Pruitt identified 14 strategies and 42 specific recommendations to achieve the following five goals:

  1. Expediting cleanup and remediation;
  2. Reinvigorating responsible party cleanup and reuse;
  3. Encouraging private investment;
  4. Promoting redevelopment and community revitalization; and
  5. Engaging partners and stakeholders.

The Superfund Program governs the investigation and cleanup of the nation’s most complex hazardous waste sites. The National Priorities List (NPL) includes those sites that are of national priority among these sites because of known or threatened releases of hazardous substances. Currently, there are 1,336 sites on the NPL, of which 1,179 are privately owned sites and 157 are federal facilities. Sites on the NPL are in various stages of remediation.

The recommendations of the Superfund Task Force are meant to improve and expedite the process of site remediation and promote reuse of the remediated sites.

Administrator Pruitt also issued a memo outlining 11 specific actions that should be implemented expeditiously to improve the Superfund program. These include maximizing deletions and partial deletions of sites off the NPL.

The Task Force will be implementing the strategies and recommendations throughout the next year.

EPA-Small Business Administration Meeting on Methylene Chloride in Furniture Refinishing

On August 18, 2017 EPA announced a Public Meeting on Methylene Chloride in Furniture Refinishing in collaboration with the Small Business Administration (SBA) Office of Advocacy.

On September 12, 2017, EPA, in collaboration with the SBA Office of Advocacy, is holding a public workshop on the use of the paint remover, methylene chloride, in furniture refinishing. This workshop will inform EPA’s understanding of the use of methylene chloride in furniture refinishing. Federal and state governments, industry professionals, furniture refinishing experts, non-government organizations, and academic experts, among others, will discuss the role of methylene chloride in furniture refinishing, potential alternatives, economic impacts, and other issues identified in EPA’s proposed rule [insert hyperlink] regulating certain uses of methylene chloride.

The proposed rule deferred action on the use of methylene chloride in commercial furniture refinishing.  It proposed a prohibition on the manufacture (including import), processing, and distribution in commerce of methylene chloride for most other types of paint and coating removal.

Information from the September 12, 2017 meeting will allow EPA to better understand current work practices and obtain additional information on the economic considerations involved in selecting chemical products for paint and coating removal in the furniture refinishing sector.

The meeting will be held at EPA Region 1 Headquarters in Boston, Massachusetts from 9:00am to 4:00pm.  EPA is also providing remote access for people who are unable to attend in person.

EPA has established an online registration system.

TSCA Negotiated Rulemaking Committee Meetings — Inorganic Byproducts and CDR

On August 18, 2017, EPA announced two upcoming meetings of the TSCA Chemical Data Reporting Negotiated Rulemaking Committee.  These meetings will be held on September 13 – 14 and October 25 – 26, 2017 in Washington, DC.  The public is invited to attend.

EPA issued a Federal Register Notice of its intent to form the committee December 16, 2016.  That notice explained that the objective of the Negotiated Rulemaking Committee will be to negotiate a proposed rule that would limit chemical data reporting requirements under section 8(a) of the amended TSCA for manufacturers of any inorganic byproduct chemical substances, when such byproduct chemical substances are subsequently recycled, reused, or reprocessed.  It also explained that the Negotiated Rulemaking Committee will attempt to reach consensus on proposed regulatory language. The negotiation process is required by section 8(a)(6) of TSCA.

EPA believes the Chemical Data Reporting (CDR) rule is the only current reporting obligation under TSCA section 8(a) that is likely to affect the manufacturers of inorganic byproduct chemical substances.

The December 16, 2016 Federal Register Notice also explained that the Agency intends to conduct the negotiated rulemaking proceedings with particular attention to ensuring full and adequate representation of those interests that may be significantly affected by a rule providing for limiting CDR requirements for inorganic byproduct chemical substances.  EPA initially identified the following groups as representing interests likely to be significantly affected by a rule:

  • Aluminum Association
  • American Chemistry Council
  • American Coal Ash Association
  • Environmental Defense Fund
  • Institute of Scrap Recycling Industries
  • IPC—Association Connecting Electronics Industries
  • North American Metals Council
  • National Mining Association
  • S. Environmental Protection Agency
  • Utility Solid Waste Activities Group

Additional information about the Committee, including information about attending Committee meetings and meeting agendas, can be found on the Committee webpage.

 

EPA Releases Working Guidance for the Nanoscale Material Reporting Rule

On August 14, 2017, EPA released the Working Guidance for the Nanoscale Material Reporting Rule.  The Working Guidance considerably narrowed the scope of “reportable chemical substance” from the draft Guidance.  EPA considers the Guidance a “working” document because it intends to update the Guidance based on questions the Agency receives.

The Working Guidance also discusses other aspects of what makes a chemical a “reportable chemical substance” and a number of other issues.  It is divided into the following sections:

  • What Chemicals are Reportable?
  • Who is Required to Report?
  • What Information is to be Reported?
  • When is Reporting Required?
  • General Questions.

The most helpful information is found under “What Chemicals are Reportable?” and “Who is Required to Report?”

What Chemicals are Reportable.  A reportable chemical substance is one that it solid at 25º C, 1 – 100 nanometers in size in at least one dimension, and intentionally manufactured or processed to exhibit unique or novel properties because of its size.  The draft Guidance had raised a number of unanswered questions regarding what comprised unique and novel properties.

In the Working Guidance, EPA explicitly states that “size is not considered to be a unique and novel property.”  The Working Guidance differentiates between unique and novel properties and enhanced or continuously scaling properties.  The later are those which do not intrinsically change on the nanoscale and instead scale proportionately with size.  Chemicals that have different functionality at the nanoscale than the form greater than 100 nanometers would be considered substances demonstrating unique and novel properties.

Additional points about “reportable chemical substances” include discussion of discrete chemical substances and coatings.  The Working Guidance notes that some nanoscale materials are engineered to give all the particles a certain morphology or shape.  The change in shape needs to be a specifically engineered change in the shape of particles to be a discrete form of a reportable chemical substances.  EPA explains that coating a nanoscale material results in a nanoscale material with different properties; in other words, by coating a nanoscale material, one has created a reportable chemical substance.

Who is Required to Report.  According to the Working Guidance, each manufacturer and processor in the supply chain must report on the reportable chemical substance.  EPA notes that processors should document the steps they took to determine whether reporting is required.  If processors do not know about specific properties that would allow them to know if they are processing a chemical substance subject to the rule, EPA believes that it would be within the reasonably ascertainable standard to ask their suppliers.

NGOs Challenge Risk Evaluation and Prioritization Rules

Environmental Defense Fund (EDF), Safer Chemicals Healthy Families, and the Alliance of Nurses for Healthy Environments (ANHE) have filed suit for review of EPA’s Risk Evaluation and Prioritization Rules promulgated under the amended Toxic Substances Control Act (TSCA).  Both rules were required by Section 6 of the amended statute.  The final rules were released by EPA on June 22, 2017.  The Safer Chemicals Healthy Families petitions challenge the Risk Evaluation and Prioritization Rules as arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; in excess of statutory jurisdiction, authority, or limitations; and without observance of procedure required by law.

EDF filed suit on August 11, 2017 in the U.S. Court of Appeals for the Second Circuit; ANHE et al filed suit on August 11, 2017 in the U.S. Court of Appeals for the Fourth Circuit; and Safer Chemicals Healthy Families et al filed suit on August 10, 2017 in the U.S. Court of Appeals for the Ninth Circuit.  Safer Chemicals Health Families was joined on its petition by a number of groups including Environmental Working Group, Union of Concerned Scientists and AFL-CIO.  ANHE was joined on its petition by the Natural Resources Defense Council (NRDC).  The NGOs did not file a Motion for Stay to prevent EPA from moving forward in implementing the Risk Evaluation and Prioritization Rules while the petitions are under review.

Additional insight into the petitioners’ concerns can be found in their statements regarding the final rules and the litigation.  EDF has said that it believes the final risk evaluation rule improperly narrows conditions of use by not including all conditions of use in the risk evaluation.  NRDC expressed concern that the risk evaluation rule introduces loopholes that could lead to incomplete analysis, which could lead EPA to conclude that a chemical doesn’t pose a health or environmental risk when it actually does.  Regarding the prioritization rule, EDF asserts that the final rule describes an information-gathering process that seeks to minimize and undermine EPA’s use of the new testing authorities available to the agency under section 4.

EPA has not commented on the litigation.

CBI Claims under the Amended TSCA

EPA recently notified many companies that CBI substantiation statements are due September 19, 2017.  This was a surprise to those unfamiliar with the CBI substantiation requirements imposed by the Lautenberg amendments to TSCA and EPA’s Statement of Interpretation regarding these provisions.  The Statement of Interpretation was issued in the Federal Register January, 19, 2017.

The Lautenberg amendments require upfront substantiation of CBI claims.  EPA data systems were not equipped to accept substantiation statements when the statute was first enacted.  CBI claims made in the months between Lautenberg’s enactment and EPA updating its systems must now be substantiated.  At issue are CBI claims made from June 22, 2016 to March 20, 2017.

The Agency has given companies until September 19, 2017 to substantiate claims made from June 22, 2016 to March 20, 2017.  For CBI submissions made on or after March 21, 2017, all claims must be substantiated at the time the assertion is made to EPA – that is at the time the information claimed as CBI is submitted to EPA.  Where there is no substantiation for a CBI claim, EPA is authorized to make the information public.

Under the amended statute, CBI substantiation must address the following:

  • Identify measures the company has taken to protect the confidentiality of the information,
  • Explain how disclosure of the information would harm to the company’s competitive position, and
  • Determine whether or not the information must be disclosed under any other Federal law;

Some categories of information are generally not subject to substantiation requirements (§14(c)(2)) (e.g., specific information describing the processes used in manufacture or processing, marketing and sales information).  Most information from health and safety studies is classified as “information not protected from disclosure” (§14(b)).

EPA provided some helpful guidance on developing CBI substantiation statements in a July 13, 2017 webinar.  In addition, the has developed substantiation templates that may be used as a starting point in preparing CBI substantiations.  In the templates, the EPA asks questions “to elicit facts that will help the Agency understand the basis for the submitter’s belief that a particular data element claimed as CBI is in fact entitled to this status.”  Detailed responses are necessary to demonstrate the following points:

  • The company’s efforts to protect the confidentiality of the information,
  • How disclosure of the information would harm to the company’s competitive position, and
  • That the information claimed as confidential does not appear in any public documents.

EPA has also developed a webpage to address these issues.  Included are lists of CDR and PMN data elements exempt from CBI substantiation under TSCA section 14(c)(2).

It is critical to be very detailed when developing substantiation statements.  Companies get only one chance to articulate the facts that support their CBI claims.  EPA procedures for reviewing CBI substantiation provide no opportunity for companies to revise or amend the statements.  The only avenue for appeal, when claims are denied, is to file a petition for review in federal district court pursuant to TSCA Section 14(g)(2)(D).  In such cases, the court’s review is likely to be limited to the record that was created for the Agency’s review, and additional legal or factual arguments beyond those presented to EPA are unlikely to be allowed.  To ensure that substantiation statements will withstand EPA’s determination process, we encourage companies to seek legal counsel.

The Court of Appeals for the D.C. Circuit Invalidates Two Key Provisions of the 2015 Amendments to the Definition of Solid Waste

On July 7, 2017, the U.S. Court of Appeals for the D.C. Circuit issued a decision invalidating two key provisions of the 2015 amendments to the definition of solid waste under the Resource Conservation and Recovery Act (RCRA). American Petroleum Institute v. EPA (D.C. Cir. No. 09-1038). The Court invalidated Factor 4 of the legitimacy determination need for recycling hazardous materials. The Court also found the Verified Recycler Exclusion was unreasonable and reinstated the old Transfer Based Exclusion.

There are four legitimacy factors that must be met to determine when a material is being legitimately recycled, and therefore the material might be excluded from the definition of solid waste. The Court struck down Factor 4, which stated that for recycling to be legitimate, the product of the recycling process must be comparable to a legitimate product or intermediate, that is the material must have comparable hazardous properties as the final product being made with the recycled material. The Court concluded that this factor imposed “draconian” procedures for demonstrating the absence of significant environmental risk. The Court vacated Factor 4, insofar as it applies to all hazardous material under 40 CFR § 261.2(g), but it did not strike down Factor 4 as it applies to specific exclusions, such as the generator-controlled exclusion at 40 CFR § 261.4(a)(23), because the Petitioners did not challenge Factor 4 as it applies to those exclusions.

The Court also struck down the Verified Recycler Exclusion and reinstated the Transfer Based Exclusion, an earlier exclusion that the Agency issued in 2008, except it kept two provisions of the Verified Recycler Exclusion: (1) the requirement that the generator meet certain emergency preparedness standards, and (2) the expanded requirement for the materials to be properly contained.