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January 18, 2019

Inside EPA Features Excerpts of B&C’s Informative Forecast 2019

The ACTA Group

On January 18, 2019, Inside EPA extensively quoted Bergeson & Campbell, P.C.’s (B&C®Forecast 2019 in the article “EPA Shutdown Stymies Looming TSCA Assessment, Rule Deadlines.”

Observers are also waiting for EPA to publish its updated TSCA inventory, the list of all existing chemicals, after receiving submissions from industry on which chemicals are deemed active — manufactured, processed or imported within the past decade — or inactive. Its publication will start a clock on yet another rulemaking.

EPA’s framework rule on the TSCA inventory and confidential business information (CBI) “requires that within one year of publishing the final active/inactive Inventory, EPA must promulgate a rule describing its plan to require submitters to substantiate CBI claims made on active notice submissions and to review claims for confidential substance identities,” Bergeson & Campbell’s Forecast 2019 states. At last count in April, the inventory contains some 38,303 active substances, the Forecast adds.

The firm’s Forecast also notes that EPA faces a June 22 statutory deadline to propose section 6(a) risk management action on a group of persistent, bioaccumulative and toxic (PBT) chemicals outlined in section 6(h). EPA has identified five chemicals matching this PBT definition that it plans to address under this provision.

“The proposed rule that must be issued by June 2019 will represent another of the important developments in 2019, as they will be the first use by the Trump Administration of the new regulatory authority and requirements under sections 6(a) and (c) of the amended law,” the Forecast states.

Bergeson & Campbell also notes that EPA has indicated that it is working on a proposed rule to revise its Chemical Data Reporting (CDR) rule, one of its primary sources of exposure information for industrial chemicals in the U.S. The Forecast notes that these changes must come quickly, because the next CDR reporting cycle is slated for 2020.

“EPA is expected to incorporate updates to the small manufacturer definition for purposes of CDR. In addition, EPA may be proposing additional reporting elements related to required reporting of chemicals that are recycled or processed,” the Forecast states. “While these changes may be helpful to the reporting community, it is imperative that EPA move quickly with its proposals so stakeholders are fully educated well before the next reporting cycle in 2020.”

The Forecast also predicts “it is likely, given the completion in 2018 or the ‘framework rules’ … that Section 4 testing actions will be taken in 2019.”

EPA’s failure to issue any testing rules since the reformed TSCA gave EPA greater authority to do so has chafed at environmentalists and other critics, who have questioned whether EPA has sufficient information to conduct risk evaluations or make prioritization decisions about existing chemicals without gathering more information about chemicals’ toxicity. And EPA officials have indicated that they may not prioritize a chemical for evaluation if it has insufficient information, because of the tight time line for risk evaluation that the formal prioritization process triggers.

The Forecast describes it as “somewhat surprising that EPA has not yet used its new order authority under section 4. EPA has focused instead on issuing section 5(e) testing requirements on individual new chemical submitters. The inability of EPA to require testing under old TSCA was one of the primary issues of concern in amending the law. While industry may not relish being subject to testing, EPA needs to utilize the tools afforded to it by Congress to help address data gaps more equitably and improve the knowledge of hazard and exposure to chemicals.”

The firm also predicts that EPA will move quickly in 2019 to finalize its proposed significant new use rule (SNUR) on certain uses of asbestos, which EPA proposed last June along with the scoping documents for its first 10 evaluations, of which asbestos is one. The Forecast notes that the most recent unified agenda listed a final rule as scheduled this month, adding, “[g]iven all the issues and attention focused on asbestos under TSCA, we expect that this rule will be promulgated during the first quarter of 2019.”

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