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.

By Lynn L. Bergeson, Richard E. Engler, Ph.D., and Carla N. Hutton
 
The U.S. Government Accountability Office (GAO) posted a WatchBlog item entitled “Can Chemical Recycling Reduce Plastic Pollution?” on October 5, 2021. The item looks at GAO’s September 2021 Science & Tech Spotlight: Advanced Plastic Recycling. According to GAO, chemical recycling could reduce the amount of plastic that ends up in landfills, potentially reducing the release of chemicals into the environment. Chemical recycling can produce high-quality raw materials, decreasing the demand for fossil fuels and other natural resources. GAO states that the obstacles to using chemical recycling include process and technology challenges, high startup and operating costs, and limited incentives for recycling innovation and investment. GAO notes that new plastics produced from fossil fuels are typically cheaper to produce than recycled plastics, in part due to transportation costs and limited recycling infrastructure, making recycled plastics less marketable. Key questions for policymakers include:

  • What steps could the federal government, states, and other stakeholders take to further incentivize chemical recycling rather than disposal? What are the potential benefits and challenges of these approaches?
     
  • What steps could policymakers take to support a transition toward a circular economy -- one in which products are not disposed of but are recycled for reuse including innovation -- and investment in manufacturing and recycling capacity?
     
  • What might policymakers do to promote advanced recycling technologies while also reducing the hazards associated with existing plastic production and recycling methods?

One issue that GAO fails to consider is the regulatory status of depolymerized plastic. If a polymer cannot be reduced back to the exact starting monomers, the U.S. Environmental Protection Agency (EPA) views the depolymerized plastic as a substance that is different from the starting monomers. Furthermore, making a polymer with depolymerized plastic is, according to the Toxic Substances Control Act (TSCA) nomenclature rules, different than the virgin polymer. These nomenclature complications will likely be a barrier to the commercialization of the closed-loop chemical recycling of plastics.


 

By Lynn L. Bergeson and Carla N. Hutton
 
On March 2, 2021, the U.S. Government Accountability Office (GAO) published its latest High Risk List, which includes 36 areas across the federal government vulnerable to waste, fraud, abuse, and mismanagement or needing broad-based transformation.  According to GAO, five areas have regressed since 2019, including the U.S. Environmental Protection Agency’s (EPA) process for assessing and controlling toxic chemicals.  GAO’s report, High-Risk Series: Dedicated Leadership Needed to Address Limited Progress in Most High-Risk Areas, states that this high-risk area declined in the monitoring criterion from a partially met rating in 2019 to a not met rating in 2021; three criteria in each of the two segments declined to a not met rating in 2021.  GAO notes that the Integrated Risk Information System (IRIS) Program did not issue a completed chemical assessment between August 2018 and December 2020, and EPA (1) did not indicate how it was monitoring its assessment nomination process to ensure it was generating quality information about chemical assessment needs; and (2) lacked implementation steps and resource information in its strategic plan and metrics to define progress in the IRIS Program.  Additionally, according to GAO, EPA’s programs supporting the Toxic Substances Control Act (TSCA) (1) did not complete workforce or workload planning to ensure the agency can meet TSCA deadlines; and (2) did not meet initial statutory deadlines for releasing its first ten chemical risk evaluations.


 

By Lynn L. Bergeson and Carla N. Hutton
 
On March 1, 2021, the U.S. Government Accountability Office (GAO) publicly released a report entitled Man-Made Chemicals and Potential Health Risks:  EPA Has Completed Some Regulatory-Related Actions for PFAS.  GAO was asked to examine the status of regulatory-related actions in EPA’s 2019 Per- and Polyfluoroalkyl Substances (PFAS) Action Plan.  GAO found that EPA completed three of six selected regulatory-related actions for addressing PFAS outlined in the PFAS Action Plan.  For two of the three completed actions, the steps EPA took were also in response to the National Defense Authorization Act for fiscal year 2020 (FY20 NDAA):

  • After proposing a supplemental significant new use rule (SNUR) in February 2020, EPA met a June 2020 deadline set in the FY20 NDAA when the EPA Administrator signed the final rule.  Among other things, under the final rule, articles containing certain PFAS as a surface coating, and carpet containing certain PFAS, can no longer be imported into the United States without EPA review; and
     
  • EPA incorporated 172 PFAS into the Toxics Release Inventory in June 2020.  The FY20 NDAA directed EPA to take this action, extending EPA’s original planned action to explore data for listing PFAS chemicals to the inventory.

Finally, in March 2020, EPA completed a third regulatory-related action, not required under the FY20 NDAA, when it proposed a preliminary drinking water regulatory determination for two PFAS, “an initial step toward regulating these chemicals in drinking water.”
According to GAO, three of the six selected regulatory-related actions are ongoing, and EPA’s progress on these actions varies:

  • As of August 2020, EPA was developing a proposed rulemaking for a nationwide drinking water monitoring rule that includes PFAS, which EPA officials stated that EPA intends to issue in final by December 2021;
     
  • EPA is currently examining available information about PFAS discharges to surface water to identify industrial sources that may warrant further study for potential regulation through EPA’s National Effluent Limitations Guidelines.  EPA expects to publish a final Effluent Guidelines Program Plan 14 in early 2021 that will include an update on the current status of EPA’s multi-industry study; and
     
  • EPA plans to continue the regulatory process for designating two PFAS as hazardous substances under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), which would allow EPA to require responsible parties to conduct or pay for cleanup.  On January 14, 2021, EPA issued an advance notice of proposed rulemaking for the hazardous substances designation to obtain public comment and data to inform EPA’s ongoing evaluation of the two PFAS.
Tags: GAO, PFAS, Water, CERCLA

 

By Lynn L. Bergeson, Charles M. Auer, and Carla N. Hutton

GAO released on March 6, 2019, a report entitled High-Risk Series:  Substantial Efforts Needed to Achieve Greater Progress on High-Risk Areas.  GAO’s high-risk program identifies government operations with vulnerabilities to fraud, waste, abuse, and mismanagement, or in need of transformation to address economy, efficiency, or effectiveness challenges.  GAO’s report describes the status of high-risk areas and outlines actions necessary to assure further progress.  GAO states that in the two years since its last high-risk report, three areas, including “Transforming EPA’s Process for Assessing and Controlling Toxic Chemicals,” have regressed in their ratings against GAO’s criteria for removal from the High-Risk List.  GAO notes that since adding this area to its High-Risk List in 2009, it has made 12 recommendations to EPA related to the IRIS Program and TSCA.  According to GAO, while EPA has taken steps to manage chemicals that pose risks to human health and the environment, leadership and implementation challenges remain.  More information is available in B&C’s March 8, 2019, memorandum, “EPA’s Process for Assessing and Controlling Toxic Chemicals Remains on GAO’s High-Risk List.”


 

By Lynn L. Bergeson, Charles M. Auer, Oscar Hernandez, Ph.D., Richard E. Engler, Ph.D., and Carla N. Hutton

On March 4, 2019, the U.S. Government Accountability Office (GAO) published a report titled Chemical Assessments:  Status of EPA’s Efforts to Produce Assessments and Implement the Toxic Substances Control Act.  The report describes the extent to which the U.S. Environmental Protection Agency’s (EPA) Integrated Risk Information System (IRIS) Program has addressed identified challenges and made progress toward producing chemical assessments; and assesses whether EPA has demonstrated progress implementing the Toxic Substances Control Act (TSCA).  GAO reviewed documents from the National Academy of Sciences (NAS) and EPA and interviewed EPA officials and representatives from two environmental and two industry stakeholder organizations.  GAO found that while EPA made improvements in the IRIS Program, between June and December 2018, EPA leadership directed the Program to stop the assessment process during discussions about program priorities.  GAO states that while EPA has responded to initial statutory deadlines in TSCA, as amended by the Frank R. Lautenberg Chemical Safety for the 21st Century Act (Lautenberg Act), challenges remain.  Read the full memorandum for more information on the report including why GAO did the study, GAO’s findings, and an insightful commentary.


 

By Lynn L. Bergeson and Margaret R. Graham

On February 8, 2018, the U.S. Government Accountability Office (GAO) issued a technology assessment report to congressional requestors entitled Chemical Innovation:  Technologies to Make Processes and Products More Sustainable.  GAO states it conducted this technology assessment “to explore, among other things, the opportunities, challenges, and federal roles in sustainable chemistry.”  This report discusses (1) how stakeholders define and assess sustainable chemistry; (2) available or developing technologies to make chemical processes and products more sustainable; and (3) how the federal government, industry and others contribute to the development and use of such technologies.  GAO states it is not making recommendations in this report, but is identifying strategic implications.

As part of its assessment, GAO interviewed stakeholders from government, industry, and academia; convened a meeting of experts on sustainable chemistry technologies and approaches; and surveyed a non-generalizable sample of chemical companies.  GAO identified three categories of more sustainable chemistry technologies -- catalysts, solvents, and continuous processing -- that demonstrate both progress and potential:

  • Catalysts reduce the energy input required for a chemical process and allow for more efficient use of materials.  Stakeholders suggested future research be directed at developing less toxic or renewable catalysts, including those that are metal-free or those from earth-abundant metals such as iron. 
  • Solvents are used in many chemical processes but can create waste issues and be toxic.  Alternatives include solvents from renewable, non-petroleum raw materials and solvents such as water that are less hazardous to human health and the environment, among other qualities. 
  • An alternative to traditional batch processing is continuous processing, in which materials react as they flow along a system of channels, pipes, or tubes. Compared to batch processing, continuous processing uses materials more efficiently, generates less waste, and has a smaller physical footprint.

GAO also identified, through its interaction with stakeholders, the following strategic implications of sustainable chemistry; and potential options to address these challenges and realize the full potential of these technologies:

  • Breakthrough technologies in sustainable chemistry could transform how the industry thinks about performance, function, and synthesis.  Sustainable chemistry creates opportunities to use a different conceptual framework that allows industry to create molecules with better performance. 
  • The establishment of an organized constituency, with the involvement of both industry and government, could help make sustainable chemistry a priority.  An industry consortium, working in partnership with a key supporter at the federal level, could lead to an effective national initiative or strategy.
  • A national initiative that considers sustainable chemistry in a systematic manner could be useful.  Such an effort could encourage collaborations among industry, academia and the government, similar to other national technology Initiatives.
  • There are opportunities for the federal government to address industry-wide challenges.  Federal attention that facilitates development of standard tools for assessment and a robust definition could help clarify relevant participants in the field and improve information available for decision-makers at all levels

More information on the report and its strategic implications is available on GAO’s website.