Fewer Chemicals May Get Regulatory Reprieve Under Amended TSCA

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By Pat Rizzuto

Fewer chemicals may get a regulatory reprieve under the amended Toxic Substances Control Act than chemical manufacturers hoped for, according to an attorney specializing in TSCA.

Mark Duvall, a principal with the Washington office of Beveridge & Diamond, P.C. told Bloomberg BNA he recently realized the TSCA amendments require the Environmental Protection Agency to designate only 20 chemicals as low priorities for risk evaluation.

The possibility that the agency could designate only 20 low-priority chemicals became apparent as he analyzed a rule the EPA proposed Jan. 17, Duvall said (RIN: 2070-AK23; 82 Fed. Reg. 4825).

The proposed rule describes the procedures the EPA would use to determine whether a chemical is a high or low priority for risk evaluation.

High-priority-chemical designation means the EPA must begin to evaluate the health or ecological risks the chemical poses. That risk evaluation could lead to regulatory controls such as labeling, supply chain communications or even bans.

Low-priority designation offers chemical manufacturers and processors at least a temporary regulatory reprieve. It means the EPA will have determined that a chemical is unlikely to pose an unreasonable health or ecological risk and therefore would not currently warrant a risk evaluation. The low-priority designation could change if new information arises that suggests the chemical may present a greater health or environmental risk than the agency previously thought.

The EPA has not yet designated any chemical as a high or low priority for risk evaluation by the EPA since TSCA was amended in June 2016.

The amended law requires the agency, however, to be evaluating the risks of at least 20 high-priority chemicals within three and a half years of the statute’s enactment. The EPA also must designate at least 20 chemicals as low priorities by that time.

Combo May Diminish Chance

The absence of a mandate for the EPA to increase the number of chemicals on its low-priority list beyond 20 combined with at least two provisions in the proposed rule could make it harder than anticipated for a chemical manufacturer to get its chemical designated as a low priority, Duvall told Bloomberg BNA in a Jan. 30 e-mail.

First, the EPA acknowledged its proposed rule would set a low bar for a chemical to be deemed a high priority and a high bar for making chemicals low priorities, he said.

Second, the proposed rule said the EPA would use its Safer Chemicals Ingredient List as a starting point to identify potential low-priority chemicals.

That list the names of more than 400 chemicals that meet specific criteria making them among the least toxic for the specific function they provide. Sunflower oil and cocoa butter, for example, are among the emollients registered on the Safer Chemicals Ingredient List.

The result of the law and the proposed rule, Duvall said, would be:

  •  a large number of potential low-priority chemicals before the EPA even begins its prioritization process,
  •  a high bar for low priority chemicals and
  •  a potential limit of only 20 low priority chemicals.

More than 20 Chemicals Said Likely

Dimitrios Karakitsos, a partner with Holland & Knight LLP’s Washington office, said the chemical evaluation procedures envisioned by the law are likely to result in more than 20 chemicals being found to be low priorities. Karakitsos previously served as counsel to the Republicans on the Senate Environment and Public Works Committee. In that role, he served as a principal drafter and negotiator of the amended chemicals law.

The prioritization and risk-evaluation process will provide all parties plenty of opportunities to provide give the EPA toxicity and exposure data, he said.

Some of that data will show the chemical can be set aside because it’s unlikely to pose a health or environmental risk, Karakitsos said.

Meanwhile, the law requires the EPA to have gone through a transparent process where interested parties can see the information on which the EPA’s final decisions are based and how it reached its conclusions, he said.

To contact the reporter on this story: Pat Rizzuto in Washington, D.C. at prizzuto@bna.com

To contact the editor responsible for this story: Larry Pearl at lpearl@bna.com

For More Information

The EPA's proposed chemical prioritization rule is available at http://src.bna.com/lPe.

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