The Toxic Substances Control Act (TSCA) was enacted in 1976 to develop adequate data regarding the effects of chemical substances and mixtures on human health and the environment, and to prevent unduly hazardous chemicals from entering commercial use. Over the next 40 years the US Environmental Protection Agency (EPA) focused on addressing new chemical substances, and made minimal progress on updating information about the 62,000 chemicals already in commerce when TSCA was enacted, to discern whether those chemicals posed unacceptable hazards. (I summarized basic provisions here). As the exception proving that rule, EPA conducted a decade-long review of asbestos before determining it should be banned, only to have the decision overturned by a federal court finding that the agency hadn’t incorporated adequate cost-benefit analyses.
On June 22, President Obama signed the “Frank R. Lautenberg Chemical Safety for the 21st Century Act,” revising TSCA extensively. Importantly, these revisions provided EPA with new authority to review existing chemicals, and gave the agency deadlines for doing so. (I discussed these reviews as part of my 3-part summary of the 2016 Amendments, here). These include new requirements for risk-based screening of chemical substances. EPA is to issue a rule by June 22, 2017, establishing a risk-based screening process, including criteria for designating chemical substances as high-priority substances for risk evaluations, or low-priority substances for which risk evaluations are not warranted. EPA is to consider the hazard and exposure potential of a chemical substance or category (including consideration of persistence and bioaccumulation, potentially exposed or susceptible subpopulations and storage near significant sources of drinking water), conditions of use, and the volume manufactured or processed.
The 2016 Amendments require EPA to act by December 22, 2017 is to ensure that risk evaluations are being conducted on 10 chemical substances, drawn from EPA’s 2014 TSCA Work Plan for Chemical Assessments. On November 29, EPA announced these first ten chemicals.
Which Chemicals Will EPA Review?
The first ten chemicals to be evaluated are:
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1,4-Dioxane – widely used, including as a solvent, and as a constituent in cosmetics, baby care products, and spermicides (possible human carcinogen)
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1-Bromopropane – a solvent used in degreasing, dry cleaning, spray adhesives, and aerosol solvents (possible human carcinogen)
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Asbestos – a ubiquitous insulator, uses of which have been reduced drastically since the 1970s, but still present in many installations and some new products (known human carcinogen)
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Carbon Tetrachloride – another widely used solvent (probable human carcinogen)
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Cyclic Aliphatic Bromide Cluster - flame retardant in extruded polystyrene foam, textiles, and electrical and electronic appliances (acute aquatic toxicant)
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Methylene Chloride – widely used in paint stripping and removal, metal cleaning and degreasing, adhesives and pharmaceutical manufacturing, polyurethane foam production, and solvents (probable human carcinogen)
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N-methylpyrrolidone –used as solvent and in paint stripper, and in pesticides (reproductive toxicant)
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Pigment Violet 29 - used in consumer products (aquatic toxicant)
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Tetrachloroethylene (perchloroethylene) – widely used in dry cleaning and metal degreasing (probable human carcinogen)
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Trichloroethylene (TCE) – solvent and degreaser (probable human carcinogen)
What Happens Next?
When the list is published in the Federal Register it will trigger a statutory deadline to complete risk evaluations for these chemicals within three years. This evaluation will determine whether the chemicals present an unreasonable risk to humans and the environment. If EPA determines that a chemical presents an unreasonable risk, it must mitigate that risk within two years.
Meanwhile, EPA jumped the gun on its own process on December 7, 2016 by announcing a proposal to ban the use of TCE in aerosol degreasing and in spot cleaning in dry cleaning facilities. If enacted, this would not directly pre-judge the continuing manufacture and use of TCE for other uses, so the chemical review would continue.
Self-Evaluation Checklist
Does the organization manufacture, import and/or process any of the ten chemicals EPA has just listed for review and possible “mitigation”?
Does the organization use any of the ten chemicals EPA has just listed for review and possible “mitigation”?
If so, has the organization reviewed its activities for possible substitutes:
- Voluntarily, while EPA’s review is underway
- Involuntarily, if EPA restricts or bans any of these chemicals
Where Can I Go For More Information?
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EPA’s webpage for Evaluating Risk of Existing Chemicals under TSCA
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EPA’s proposal to ban some applications of TCE (pre-publication version)
Specialty Technical Publishers (STP) provides a variety of single-law and multi-law services, intended to facilitate clients’ understanding of and compliance with requirements. These include:
About the Author
Jon Elliott is President of Touchstone Environmental and has been a major contributor to STP’s product range for over 25 years. He was involved in developing 13 existing products, including Environmental Compliance: A Simplified National Guide and The Complete Guide to Environmental Law.
Mr. Elliott has a diverse educational background. In addition to his Juris Doctor (University of California, Boalt Hall School of Law, 1981), he holds a Master of Public Policy (Goldman School of Public Policy [GSPP], UC Berkeley, 1980), and a Bachelor of Science in Mechanical Engineering (Princeton University, 1977).
Mr. Elliott is active in professional and community organizations. In addition, he is a past chairman of the Board of Directors of the GSPP Alumni Association, and past member of the Executive Committee of the State Bar of California's Environmental Law Section (including past chair of its Legislative Committee).
You may contact Mr. Elliott directly at: tei@ix.netcom.com