TSCA Implementation Update
Background
EPA is scheduled to publish several final risk mitigation rules during Summer 2024, including rules affecting manufacture, import, processing and use of methylene chloride, carbon tetrachloride and perchloroethylene. Being the first final risk mitigation rules since the 2016 revisions under TSCA, EPA is setting a disturbing precedent whereby EPA generally bans uses based on extreme assumptions during risk evaluation and a lack of use-specific information about industry risk mitigation practices. EPA asserts its assumptions are justified under revised TSCA. EPA also seeks to establish elements of the current approach to risk evaluation in a risk evaluation procedural rule proposed in October 2023, scheduled to be finalized this Spring. Having a direct impact on the paint and coatings industry, EPA is scheduled to propose risk mitigation rules for Pigment-Violet 29 and NMP by the end of 2024.
With the change in administration effective in 2021, EPA undertook an initiative to review and revise the prior administration’s chemical risk evaluations and TSCA implementation policies. As of Spring 2023, EPA began publishing draft risk mitigation rules for the first 10 chemicals evaluated under TSCA, including methylene chloride, carbon tetrachloride and perchloroethylene. Paint and coatings manufacturers could be impacted by several of the first 10 chemical evaluations, depending on specialized use and product formulations. EPA’s evaluation of PV-29 and NMP may directly impact some paint and coatings manufacturers. According to its most recent regulatory agenda, EPA expects to propose risk mitigation strategies for PV-29 in May 2024 and later this year for NMP. ACA is currently advising a multi-agency Small Business Advocacy Review Panel regarding risk mitigation for PV-29.
Over the past few months, EPA finalized or proposed several important rules, including the TSCA PFAS Reporting Rule, requiring manufacturers of PFAS report detailed data sets, including downstream uses and workplace practices, for any manufacture of PFAS since January 1, 2011. Reporting includes manufacture in articles and as byproducts, with no de minimis threshold. EPA also finalized rules related to claiming and substantiating confidential information used for a TSCA purpose. Both rules could result in disclosure of currently confidential c.hemical identities.
EPA also finalized an asbestos reporting rule, requiring reporting by May 24, 2024 of any amounts manufactured, imported or processed including in bulk form, as an impurity, in mixtures, articles or products, between 2019 and 2022. EPA specifies asbestos types by 7 CAS numbers, including asbestos from the Libby mine, a mine in Montana operating from the 1920’s through 1990, supplying about 80% of global supply of vermiculite asbestos, later identified as contaminated with a highly toxic form of asbestos. Paint and coatings manufacturers must review any information about raw materials for asbestos contamination at any detectable levels and report to EPA as needed. The rule does not require testing of raw materials, but downstream users must thoroughly review all internal documentation and make any targeted external inquiries to identify reportable information.
EPA recently proposed procedural rules related to new chemical review, codifying several elements of current PMN forms on the CDX platform. The rule elevates the data requirements, including information about downstream uses and workplace exposure, to a regulatory requirement. Failure to submit required data will result in conservative default assumptions. The rule could cause further delays in the new chemical review process due data submission requirements.
ACA Action
ACA will continue to work through working groups and its Product Stewardship Committee to engage with EPA on several rulemakings under TSCA and to advance EPA’s risk evaluation process for chemicals.
ACA Staff
Riaz Zaman
Senior Counsel, Government Affairs