Bergeson & Campbell, P.C. (B&C®) is a Washington, D.C. law firm providing chemical and chemical product stakeholders unparalleled experience, judgment, and excellence in matters relating to TSCA, and other global chemical management programs.

The November 14, 2016, BNA Daily Environment Report featured comments from James V. Aidala, Senior Government Affairs Consultant for Bergeson & Campbell, P.C. (B&C®), in the story “Trump Transition Team Expected Soon at EPA To Begin Review of Agency Actions, Priorities” (paid subscription):

  • Trump’s EPA transition team will likely receive "massive briefing books" on each of the agency’s programs, including air pollution, water, waste and pesticides, according to Jim Aidala, a senior government affairs consultant with Bergeson & Campbell P.C. in Washington D.C. Aidala, who worked at the EPA from 1993 through 2001, including a stint as Assistant Administrator for EPA’s Office of Prevention, Pesticides, and Toxic Substances (now Office of Chemical Safety and Pollution Prevention), told Bloomberg BNA in an interview conducted before the election that those briefing books will need to include updates on pending litigation and decisions that need to be made early in the administration. Aidala highlighted a number of pending decisions that need to be made under the amended Toxic Substances Control Act (Pub. L. No. 114-182) that was signed into law in 2016. For the new chemicals law, the incoming EPA team will need to be briefed on necessary implementation activities, including prioritization of chemicals for review and new hiring to expand the agency’s chemicals program, Aidala said.

Career Staff Cooperation Expected

  • Aidala, in a follow-up interview conducted Nov. 9, said that there may be some ‘‘initial skepticism’’ between some at the EPA and the Trump transition team. During the primaries, Trump said he’d like to eliminate the agency, but later backed off on that promise and said he planned to refocus the EPA on its ‘‘core mission’’ of focusing on clean air and safe drinking water. However, Aidala noted many of the mid-level and senior career staff at the EPA have been at the agency long enough that they’ve seen Administrations of both political parties come and go. ‘‘Career staff across the government are professionals,’’ he said. ‘‘There is a general duty to tell the leadership what is important and what is not.’’ 

 

On September 19, 2016, the U.S. Environmental Protection Agency (EPA) posted a notice on the Chemical Data Reporting website that it has amended the CDR regulations to extend the 2016 submission deadline from September 30, 2016, to October 31, 2016.  According to the pre-publication version of the Federal Register notice for the final rulemaking, EPA received a request for an extension, citing problems with certain aspects of the electronic reporting system that impact a business’s ability to submit within the required timeframe, and agreed that additional time should be afforded.  EPA clearly states, however, that the extension is a one-time extension for the 2016 reporting period only.  The action does not impact the reporting timeframe for the 2020 CDR.

Because the original reporting deadline of September 30, 2016, was imminent, EPA will utilize discretion under the Administrative Procedure Act that allows it to issue a final rule if standard public review and comments are impracticable (Section 553(b)(3)(B)) and for “good cause” (Section 553(d)).

The rulemaking will be effective upon publication in the Federal Register.


 

By Sheryl L. Dolan and Kathleen M. Roberts

On September 13, 2016, the U.S. Environmental Protection Agency (EPA) convened its second industry stakeholder meeting to discuss the development of a fees rule under the Frank R. Lautenberg Chemical Safety for the 21st Century Act (Pub. L. No. 114-182, “new TSCA”); a copy of the presentation is available here.  Under new Toxic Substances Control Act (TSCA) Section 26(b)(4)(E), EPA is required to solicit input in support of fees rulemaking.  EPA convened its first stakeholder meeting on August 11, 2016.  Comments submitted by the August 24, 2016, deadline are available in the docket.  During its second meeting, EPA stated it would continue to consider input received by Friday, September 23, 2016; any additional comments should be sent to .(JavaScript must be enabled to view this email address).  EPA states it intends to send its proposal to the Office of Management and Budget (OMB) by mid-October 2016, and expects a proposed rule will be published by the second half of December 2016.

In anticipation of the second meeting, EPA shared its general observations as to a way forward for fee assessment under TSCA Sections 4, 5, 6, and 14 and some of EPA’s key take aways from the comments submitted to the docket.  In its meeting presentation, EPA outlined its estimated annual costs by 2019 (i.e., once the Section 6 risk evaluation schedule is ramped up).  While no specific fee proposals emerged from the meeting discussions, the following information was discussed, which provides some insight into EPA’s ongoing process:

  • EPA’s projected annual cost for implementing TSCA Sections 4, 5, 6 and 14 includes both direct and indirect/overhead costs, with a 22.75 percent adjustment to cover overhead, consistent with EPA’s overall budget practice.
  • In estimating the anticipated number of Section 5 submissions, EPA stated that based on industry comments regarding the effect of fees, it assumed a 30 percent reduction from recent years.  EPA essentially stated that 30 percent is an educated guess, noting that Notices of Commencement (NOC) are only filed on approximately 50 percent of premanufacture notices (PMN).
  • EPA stated that, consistent with industry’s comments, it most likely will not propose to charge separately for individual confidential business information (CBI) claims, but instead will incorporate that into overhead costs.
  • EPA stated that it is implementing a time accounting system, which may support future refinements of its cost estimates; EPA is required to review its fee program every three years under TSCA Section 26(b)(4)(F).
  • EPA stated that it is pursuing consultation with the Small Business Administration regarding revisiting the applicable definition of a small business concern.  While clarifying that this is not a proposal, EPA noted that if the producer price index is applied to the small business concern definition in 40 C.F.R. § 700.43, the $40 million revenue cap in the definition would increase to $91 million.  As reflected in the circulated spreadsheet, EPA plans to propose reduced fees for small businesses as required by TSCA Section 26(b)(4)(A).  EPA also stated that approximately 14 percent of TSCA submissions are made by small businesses.
  • Section 6 risk evaluation fees remain one of the greater uncertainties.  During the September 13, 2016, meeting, suggestions were made that these fees should be assessed incrementally, perhaps tied to milestones, with a schedule that perhaps could allow tying the fees to actual costs.  In response, EPA noted that OMB requirements preclude federal agencies from seeking fees in reimbursement for completed activities.

Based on its projected costs, EPA will seek to raise the $25 million annual maximum allowed by new TSCA.  Regardless of how these costs are distributed among Sections 4, 5, and 6 (assuming EPA’s proposal does not separately charge for Section 14 activities), it is clear that the proposed rule will be a significant change from the $2,500 PMN fee in place since the 1980’s.


 

By Lynn L. Bergeson and Richard E. Engler, Ph.D.

On September 2, 2016, the U.S. Environmental Protection Agency (EPA) released additional guidance on its implementation of the new Toxic Substances Control Act (TSCA) in the form of additional questions and answers (Q&A).  EPA added a series of Q&As of particular relevance given the fast-approaching TSCA Section 6(h) deadline of September 19, 2016, for industry to request a risk evaluation for persistent, bioaccumulative, and toxic (PBT) chemicals listed in the 2014 TSCA Work Plan.  Section 6(h) outlines a procedure requiring “expedited” regulatory action that is intended to reduce exposures to these chemicals to the “extent practicable.”  As written, chemicals subject to Section 6(h) will not undergo a risk evaluation as with other high-priority chemicals.  Instead, EPA will proceed immediately to assess and identify appropriate risk management actions for these chemicals that EPA believes achieves the goal of reduced exposure to the “extent practicable.”  EPA is required under new TSCA to issue the proposed risk management rules by June 2019, three years from enactment of new TSCA, and issue the final rules six months thereafter.

As we noted in an earlier blog, this deadline poses ups and downs.  On the one hand, absent a risk evaluation, fast tracking the process necessarily invites worst-case assumptions and a high degree of probability that regulatory actions will be extensive.  On the other hand, in the absence of a defined risk evaluation process and a yet-to-be-defined fee assessment process or schedule, volunteers may be few and far between.  Understandably, a potential requester can be expected to want to know what the risk evaluation cost will be before making a commitment to pay that amount.  Even with these uncertainties, under some circumstances the election may be worth considering and stakeholders are urged to consider the risks and benefits quickly, as September 19 is only days away.

EPA’s new Q&As pertinent to PBTs relate to:

Interestingly, EPA’s Q&As address some, but not all, questions. Careful review of the questions and EPA’s answers is advised.  In short:

  • There are seven substances on the Work Plan list that are PBTs;
  • There is no formal request form; all that is required is the substance and company identity, along with the contact information of the requesting official; 
  • Entities requesting the assessment are disallowed from defining the scope and EPA intends to “evaluate the chemical substance in accordance with TSCA section 6(b)” regardless of a more narrowly defined set of uses of interest to the submitter;
  • The submitter will be expected to pay for the full assessment; and
  • The request is irrevocable and cannot be withdrawn.

While EPA’s interpretation comes as no surprise, reasonable people are likely to disagree as to whether the law must be read as EPA reads it.  EPA may find more willing sponsors if, for example, the fee is limited to cover the scope of nominated uses.  EPA could evaluate a broader scope, but the additional expense would not be entirely borne by the nominating company.


 

By Lynn L. Bergeson and Margaret R. Graham

The U.S. Environmental Protection Agency (EPA) posted guidance regarding changes to the requirements for making confidential business information (CBI) claims under the Toxic Substances Control Act (TSCA), as amended by the Frank R. Lautenberg Chemical Safety for the 21st Century Act.  The “key changes” that EPA notes are:

New Certification Requirement.  Pursuant to TSCA § 14(c), a submitter of information claimed as CBI must now certify agreement with several statements.  The certification language is incorporated into electronic reporting tools for TSCA submissions requiring or permitting electronic reporting. Entities who make TSCA submissions on paper must now also include the following statements in the submission:

  • I hereby certify to the best of my knowledge and belief that all information entered on this form is complete and accurate.
  • I further certify that, pursuant to 15 U.S.C. § 2613(c), for all claims for confidentiality made with this submission, all information submitted to substantiate such claims is true and correct, and that it is true and correct that:
    • (i) My company has taken reasonable measures to protect the confidentiality of the information;
    • (ii) I have determined that the information is not required to be disclosed or otherwise made available to the public under any other Federal law;
    • (iii) I have a reasonable basis to conclude that disclosure of the information is likely to cause substantial harm to the competitive position of my company; and
    • (iv) I have a reasonable basis to believe that the information is not readily discoverable through reverse engineering.
  • Any knowing and willful misrepresentation is subject to criminal penalty pursuant to 18 U.S.C. § 1001.

Substantiation Requirements.  Existing substantiation requirements for certain types of CBI claims continue to remain in effect.  EPA notes that it may develop further guidance and require additional requirements in the future.

Generic Names.  A structurally descriptive generic name is now required where specific chemical identity is claimed as CBI.  EPA will be relying on existing generic name guidance for the creation and approval of generic names until updated guidance is developed.

EPA’s Review of Claims.  EPA will be reviewing and approving or denying a CBI claim for specific chemical identity and a proportion of CBI claims for other types of information in accordance with TSCA § 14.  EPA states that it may contact submitters of CBI to corroborate their CBI claims to the extent that substantiation has not already been provided.

While the guidance is welcomed and useful, it sheds no light on how best to corroborate a claim of CBI and how best to respond to an EPA allegation that the CBI claim is lacking.  These questions will continue to be debated; when in doubt, consult legal counsel.

More information is available on EPA’s website.  Please also join Bergeson & Campbell, P.C. (B&C®) and Chemical Watch on September 12, 2016, for the third complementary webinar in the series on “‘The New TSCA -- What You Need to Know,” featuring information on the TSCA Inventory, Chemical Data Reporting (CDR), and CBI.   

Tags: CBI, EPA, guidance, TSCA

 

By Lynn L. Bergeson and Margaret R. Graham

On August 26, 2016, the U.S. Environmental Protection Agency (EPA) issued a notice of the establishment of a Science Advisory Committee on Chemicals (SACC) under Section 9(a) of the Federal Advisory Committee Act and pursuant to Section 26(o) of the Toxic Substances Control Act (TSCA), as amended by the Frank R. Lautenberg Chemical Safety for the 21st Century Act.  The notice also solicits comments and requests nominations for new members of the SACC.  The SACC expects to meet in person or by electronic means (e.g., via webinar) approximately three to four times a year, or as needed and approved by the Designated Federal Officer (DFO) and its meetings will be held in the Washington, D.C. metropolitan area.

EPA’s notice states that the purpose of the SACC is to “provide independent advice and expert consultation, at the request of the EPA Administrator, with respect to the scientific and technical aspects of risk assessments, methodologies, and pollution prevention measures or approaches supporting implementation of [amended TSCA].”  The SACC will be composed of approximately 14 members who will serve as Special Government Employees or Regular Government Employees (RGE).  Nine of the 14 members of the SACC will most likely be selected from existing EPA Chemical Safety Advisory Committee (CSAC) members, and EPA will select five new members from among the candidates nominated via this notice and other sources.

CSAC members who are interested and available for the SACC include:

  • Holly Davies, Ph.D., Senior Toxicologist, Department of Ecology, State of Washington, Olympia, WA;
  • William Doucette, Ph.D., Professor, Department of Civil and Environmental Engineering, Utah State University, Logan, UT;
  • Panos G. Georgopoulos, Ph.D., Professor of Environmental and Occupational Health, Rutgers Biomedical and Health Sciences—School of Public Health, Rutgers, The State University of New Jersey, Piscataway, NJ;
  • Kathleen Gilbert, Ph.D., Professor, Department of Microbiology and Immunology, University of Arkansas for Medical Sciences, Little Rock, AR;
  • John Kissel, Ph.D., Professor of Environmental and Occupational Health Sciences, University of Washington, Seattle, WA;
  • Jaymie Meliker, Ph.D., Associate Professor, Program in Public Health, Department of Family, Population, & Preventive Medicine, Stony Brook University, Stony Brook, NY;
  • Kenneth Portier, Ph.D., Vice President, Statistics and Evaluation Center, American Cancer Society, Atlanta, GA;
  • Daniel Schlenk, Ph.D., Professor of Aquatic Ecotoxicology and Environmental Toxicology, University of California, Riverside, Riverside, CA; and
  • Kristina Thayer, Ph.D., Deputy Division Director of Analysis and Director, Office of Health Assessment and Translation, National Toxicology Program, National Institute of Environmental Health Sciences, Research Triangle Park, NC.

EPA states that nominated candidates should have:

  • [D]emonstrated high levels of competence, knowledge, and expertise in scientific/technical fields relevant to chemical risk assessment and pollution prevention and in particular, the nominees should include representation of the following disciplines, including, but not limited to: Human health and ecological risk assessment, biostatistics, epidemiology, pediatrics, physiologically-based pharmacokinetics (PBPK), toxicology and pathology (including neurotoxicology, developmental/reproductive toxicology, and carcinogenesis), and chemical exposure to susceptible life stages and subpopulations (including women, children, and others).

EPA is also considering the differing perspectives and breadth of collective experience needed to address EPA's charge to the SACC, as well as the following:

  1. Background and experiences that would contribute to the diversity of scientific viewpoints on the committee, including professional experiences in government, labor, public health, public interest, animal protection, industry, and other groups, as the EPA Administrator determines to be advisable (e.g., geographical location; social and cultural backgrounds; and professional affiliations);
  2. Skills and experience working on committees and advisory panels, including demonstrated ability to work constructively and effectively in a committee setting;
  3. Absence of financial conflicts of interest or the appearance of a loss of impartiality;
  4. A willingness to commit adequate time for the thorough review of materials provided to the committee; and
  5. Availability to participate in committee meetings.

EPA will publish the names, affiliations, and brief biographical sketches of the interested and available nominees in the Federal Register for a 30-day public comment period.  Comments and nominations are due by October 11, 2016.  Updates concerning the SACC will be available on EPA’s CSAC website.

The SACC needs to be populated with a diversity of skill sets and individuals who know how TSCA operates in real time.  Qualified industry representatives with solid TSCA credentials are urged to consider becoming a nominee to ensure the SACC represents the full spectrum of interests it was intended to reflect. 


 

By Lynn L. Bergeson and Margaret R. Graham

The U.S. Environmental Protection Agency (EPA) proposed on July 28, 2016, revisions to the regulations governing significant new uses of chemical substances under the Toxic Substances Control Act (TSCA) with revisions to the Occupational Safety and Health Administration’s (OSHA) Hazard Communications Standard (HCS) occasioned by OSHA’s March 2012 final rule modifying the HCS to conform to the United Nations’ (U.N.) Globally Harmonized System of Classification and Labelling of Chemicals (GHS), changes to OSHA’s Respiratory Protection Standard, and the National Institute for Occupational Safety and Health (NIOSH) respirator certification requirements pertaining to respiratory protection of workers from exposure to chemicals.  EPA states that it is also proposing changes to regulations based on issues that it identified, as well as issues raised by public commenters, for significant new use rules (SNUR) previously proposed and issued under these regulations.  Additionally, EPA claims to propose a “minor” change to reporting requirements for premanufacture notices (PMN) and other TSCA Section 5 notices.  EPA states that it expects the changes “to have minimal impacts on the costs and burdens of complying, while updating the significant new use reporting requirements to assist in addressing any potential effects to human health and the environment.”  Comments are due September 26, 2016.

The revisions include:

  • Proposed Changes to 40 C.F.R. Section 721.63, Protection in the Workplace;
  • Proposed Changes to 40 C.F.R. Section 721.72, Hazard Communication Program;
  • Clarification of the Use of 40 C.F.R. Section 721.80, Industrial Commercial and Consumer Activities;
  • Proposed Changes to 40 C.F.R. Section 721.91, Computation of Estimated Surface Water Concentrations:  Instructions;
  • Proposed Changes to 40 C.F.R. Section 721.11, Determining Whether a Chemical Substance or a Specific Use Is Subject to This Part When the Chemical Substance Identity or Significant New Use Is Confidential;
  • Proposed Changes for Submission of SDS(s) with PMNs, SNUNs, Low Volume Exemptions (LVE), Low Release and Exposure Exemptions (LoREX), and Test Marketing Exemption (TME) Applications; and
  • Fixing Typographical Errors and Other Non-Substantive Changes.

Commentary

Although the notice downplays them, the proposal raises significant and complex issues.  There may well be good reasons for several of the proposed changes.  The minimal discussion provided in the notice and the lack of adequate public debate having occurred prior to its issuance raise troubling questions about the legal basis for, scope of, and complexity of the proposed changes, some of which may apply retroactively. The confusion the proposal can be expected to cause could have been avoided had adequate discussion preceded its publication, or at the least EPA could have raised these issues in the proposed rule’s preamble to focus stakeholders’ attention appropriately.

More information is available in our memorandum TSCA: Proposed Revisions to Significant New Use Rules Reflect Current Occupational Safety and Health Standards.


 

By Lynn L. Bergeson and Margaret R. Graham

On July 25, 2016, the U.S. Environmental Protection Agency (EPA) announced its intention to hold two public meetings on August 9, and August 10, 2016, to obtain input on the processes that will be used to prioritize and evaluate chemicals under the Toxic Substances Control Act (TSCA), as amended by the Frank R. Lautenberg Chemical Safety for the 21st Century Act:

  • August 9, 2016:  EPA states that this public meeting will inform its proposed rule on conducting risk evaluations to determine whether a chemical presents an unreasonable risk of injury to health or the environment; and
  • August 10, 2016:  EPA states that this public meeting will inform its proposed rule to establish a risk-based process for chemical prioritization.

The public meetings are scheduled for 9:30 a.m. to 4:30 p.m., and will be held at the Ronald Reagan Building and International Trade Center, Horizon Ballroom, 1300 Pennsylvania Avenue, N.W., Washington, D.C. EPA states that the input obtained during these meetings will be considered as the EPA develops its proposed procedural regulations for risk evaluation and chemical prioritization.  EPA is recommending that any interested participants register in advance.  

More information concerning EPA’s implementation of the amended TSCA is available in our memorandum EPA Publishes First Year Implementation Plan, as well as on the Bergeson & Campbell, P.C. (B&C®) website under Regulatory Developments: TSCA.

Commentary

It is critically important that stakeholders attend and participate in these meetings. While the timing is regrettable in light of vacation schedules, EPA is under intense pressure to issue rules later this year and EPA has no choice other than to keep the process moving.  EPA is to be commended for scheduling these opportunities as quickly as it has, and its efforts should be acknowledged by robust stakeholder engagement.


 

By Lynn L. Bergeson

On Friday, July 22, 2016, the U.S. Environmental Protection Agency (EPA) posted the first four Toxic Substances Control Act (TSCA) Section 5(a) determinations made following review of pre-manufacture notifications (PMN) according to TSCA as amended by the Frank R. Lautenberg Chemical Safety for the 21st Century law, Pub. L. No. 114-182 (Lautenberg).  EPA’s determination on all four chemical substances was “not likely to present and unreasonable risk,” under new TSCA Section 5(a)(C)(3).  The PMN Case Numbers, Chemical Identities, a summary of the determination, the decision dates, as well as the links to the determinations themselves are below.  The review start date for all of these determinations was the date of Lautenberg’s enactment, June 22, 2016.  Bergeson & Campbell, P.C. (B&C®) is reviewing these determinations and will provide an analysis.

  • P-16-0281:  Generic: Fatty Alcohols-Dimers, Trimers, Polymers.  EPA determined that “[t]he chemical substance is not likely to present an unreasonable risk based on low health hazard concern and low environmental toxicity.”  The decision was issued on July 15, 2016.
  • P-16-0292:  Generic: Depolymerized Waste Plastics.  EPA determined that “[t] he chemical substance is not likely to present an unreasonable risk based on low human health hazard and low environmental hazard.  Although EPA estimated that the new chemical substance would be very persistent, this did not indicate a likelihood that the chemical substance would present an unreasonable risk, given that the chemical substance has low potential for bioaccumulation, low human health hazard, and low environmental hazard.”  The decision was issued on July 20, 2016.
  • P-16-0301: Generic:  Propyl Silsesquioxanes, Hydrogen-Terminated.  EPA determined that “[t]he chemical substance is not likely to present an unreasonable risk based on low human health hazard and low environmental hazard.”  The decision was issued on July 20, 2016.
  • P-16-0302:  Generic:  Organic Modified Propyl Silsesquioxane.  EPA determined that “[t]he chemical substance is not likely to present an unreasonable risk based on low human health hazard and low environmental toxicity. Although EPA estimated that the new chemical substance would be very persistent, this did not indicate likelihood that the chemical substance would present an unreasonable risk, given that the chemical substance has low potential for bioaccumulation, low human health hazard, and low environmental hazard.”  The decision was issued on July 20, 2016.

 

Bergeson & Campbell, P.C. (B&C®) has learned that the U.S. Environmental Protection Agency (EPA) is planning to convene a stakeholder workshop in Washington, D.C. on August 9-10, 2016, for a public dialogue on prioritization and risk evaluation.  We also understand that EPA may host an industry meeting on August 11-12, 2016, to consult on fees.  The dates and topics will be confirmed when EPA makes announcements in the Federal Register.


 
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