EPA Moves to Revise Chemical Reviews

This month the U.S. Environmental Protection Agency (EPA) has issued two policy changes that will likely have substantial regulatory effects on chemicals and manufacturing sectors. First, EPA announced that it will reopen risk evaluations for certain high-priority chemicals that were completed under the last administration. Second, EPA announced changes to its new chemical review program to focus more on considering all conditions of use and worker protections for a chemical under review.

In the first announcement, Michal Freedhoff, Acting Assistant Administrator for EPA’s Office of Chemical Safety and Pollution Prevention, spoke at a Chemical Watch virtual conference regarding the Toxic Substance Control Act (TSCA) program. Under the 2016 amendments to TSCA, EPA is required to designate high-priority substances already in commerce in the U.S. for risk evaluations to determine whether they pose an unreasonable risk. Freehoff indicated that 10 of those risk evaluations completed under the last administration will be under review, although EPA intends to move expeditiously toward rulemaking and stakeholder engagement. This could present an issue for any company or trade organization that submitted comments during EPA’s process under the last administration.

In the second announcement, EPA issued a public notice on the new chemicals program primarily related to how EPA handles TSCA Section 5(e) orders that control how new chemicals are manufactured and used. EPA indicated two major changes. First, EPA indicated that it would change how it considers a submitter’s uses of a chemical as compared with uses by other parties. Previously, EPA may have found no unreasonable risk presented by a submitter’s use but that other uses could present an unreasonable risk. The new announcement indicates that EPA will cease considering these separately and handle various uses collectively. Second, EPA indicated that it will expand its inclusion of worker protections. Previously, EPA assumed that Occupational Safety and Health Act (OSHA) worker protection standards and safety data sheets were sufficient. Now EPA will require including those provisions as terms in TSCA Section 5(e) orders, providing a separate basis for enforcement of worker protections, independent of OSHA authority.

This post is as of the posting date stated above. Sidley Austin LLP assumes no duty to update this post or post about any subsequent developments having a bearing on this post.