ACA Joins Coalition Supporting TSCA Rulemaking Process
September 12, 2017 •
On Sept. 11, the American Coatings Association (ACA) joined a multi-organizational coalition filing a Motion to Intervene in a lawsuit against the U.S. Environmental protection Agency (EPA) by several non-governmental organizations (NGOs). The NGOs, who filed the lawsuit on Aug. 10 and 11, are seeking judicial review of EPA’s Prioritization and Risk Evaluation Rules promulgated under the amended Toxic Substances Control ACT (TSCA). The petitions for review, filed in the 2nd, 4th, and 9th U.S. Circuit Courts of Appeal, have been consolidated in the 4th and 9th U.S. Circuits. The petitions provide little detail but contend that EPA’s final rules reflect an abuse of agency discretion, or were otherwise beyond EPA’s authoritative scope.
ACA worked with Congress throughout the legislative process to modernize TSCA — which culminated in passage and enactment of The Frank R. Lautenberg Chemical Safety for the 21st Century Act — and is very concerned about this challenge to the TSCA rules. During the legislative process, ACA advocated for TSCA reform to address the inefficiencies of the then-current regulations. Numerous advocacy groups believed that TSCA had outlived its usefulness and had failed to address potential new and emerging public health risks associated with chemicals of concern. Specifically, ACA and other industry groups called for EPA to have more authority to request information or testing of chemicals, strengthen the safety standard, adopt a risk-based approach to evaluating chemicals, and have strong, federal pre-emption of state and local laws.
While the NGO petitions aren’t detailed, it is likely that they will contest EPA’s process for evaluating “conditions of use” of a chemical, and more generally, EPA’s information gathering procedures.
TSCA defines a “condition of use” as use of a chemical and circumstances of manufacture, processing, distribution and disposal. ACA, in its many public comments, has maintained that EPA should prioritize certain conditions of use for risk evaluation, rather than unnecessarily evaluating all conditions of use when evaluating risk. Studies demonstrate that certain chemicals used in the paint and coatings industry do not pose an unreasonable risk to workers or consumers. In ACA’s view, this would be a “condition of use” that EPA should eliminate from its risk evaluation, while focusing on conditions of use with greater potential for harm.
ACA is concerned that the significant progress EPA has made toward enhanced chemical reviews might be undone by unnecessarily prolonged risk evaluations and EPA making a final determination about fewer chemicals, should the NGOs suit succeed. This would lead to greater regulatory uncertainty, with improvements to risk assessment procedures being questionable at best. By joining as an intervenor, ACA continues to support EPA in developing processes for accurate and efficient evaluation of chemicals under the amended TSCA.