ACA Urges Execution of TSCA Changes


In a recent letter to the U.S. Environmental Protection Agency, the American Coatings Association wrote to express support of the continued implementation of the Lautenberg amendments to the Toxic Substances Control Act as it was intended by Congress in 2016.

Although in support of the execution efforts, the ACA pointed out several issues where the association believed the EPA was struggling to carry out the TSCA amendments, specifically in its review process. As a result, the ACA reports that the coatings industry is facing significant obstacles in innovation and competitiveness as it relies on the successful navigation of the chemical review process under the Lautenberg Act.

Key Obstacles

According to the ACA, because of the agency’s bottlenecked review process, the coatings industry is facing several barriers. The following are just a few the ACA has highlighted from its letter:

  • Premanufacture Notices – In its letter, the ACA reports that some coatings manufacturers are waiting 6-14 months for the completion of review processes. The ACA fears that the backlog will lead to loss of value with new technologies developed in the U.S. to other countries such as Canada, Europe and Asia where the review process is faster. In addition, the ACA notes that the up to three-month-long timeline for toxicity study reviews is also problematic;
  • Significant New Use Rules (SNURs) – The ACA writes that SNURs are acting as an obstacle to sustainability in many industries and that they have a strong negative impact on downstream markets, creating additional administrative reporting burdens for its customers. As a result, the ACA further reports that many coatings companies have opted to forgo applications for a pre-manufacture notice for a safer chemistry and remain using older technologies for this reason. Due to this issue, the ACA is strongly encouraging the EPA to narrowly tailor SNURs to avoid unintended regulatory requirements that act as a barrier to innovation and sustainability and the use of safer, more environmentally friendly chemistries; and
  • Risk Evaluations – Lastly, the ACA and its members expressed concern over unwarranted assumptions during risk evaluation of chemicals, as they could lead the agency down a path of unnecessarily restricting or banning chemical uses.

Overall, the ACA stressed that sound science must be the foundation for decision-making in the chemical review program.

Previous, Ongoing Improvements

Back in June, the EPA marked the 5th anniversary of the Frank R. Lautenberg Chemical Safety for the 21st Century Act amendments to the TSCA.

“The 2016 TSCA amendments were born out of a recognition that the nation needed a stronger law to protect communities from dangerous chemicals in our environment and in the products we use,” said Michal Freedhoff, Assistant Administrator for the Office of Chemical Safety and Pollution Prevention, at the time. “This single piece of legislation provided a transformational framework to revolutionize and modernize EPA’s entire chemical safety process, providing the agency with needed authority to review chemicals and put protections in place when risks are found.”

The amendments to TSCA provided much needed improvements to EPA’s ability to protect human health and the environment from chemical risks by:

  • Establishing a mandatory and ongoing duty on EPA to prioritize and evaluate existing chemicals against a risk-based safety standard with clear and enforceable deadlines, and manage unreasonable risks where identified;
  • Expanding EPA authority to require the generation of health and safety data for chemicals;
  • Requiring EPA to affirmatively determine that new chemicals meet the safety standard before entering the market; and
  • Increasing the public transparency of chemical information.

In the past five years, EPA has made progress towards implementing key parts of the law, including:

  • Promulgating rules and setting up processes to evaluate the many thousands of existing chemicals in the marketplace;
  • Conducting risk evaluations for the first 10 chemicals identified for risk evaluation under TSCA;
  • Issuing risk management rules for five persistent, bioaccumulative and toxic (PBT) chemicals intended to provide critical protections for children, workers and other potentially at-risk groups;
  • Taking the first step in addressing risks from methylene chloride by issuing a ban on the consumer use of this chemical in paint removers;
  • Expanding the use of our data gathering authority, including issuing the first section 4 test orders under amended TSCA;
  • Listing the chemicals that are actively being manufactured, processed and imported in the United States and those that are not on the TSCA Inventory;
  • Reviewing and making determinations on confidential business information claims to ensure that those claims warrant protection and are appropriately substantiated; and
  • Issuing the first rule for the agency to collect fees from chemical manufacturers to help fund TSCA implementation.

As part of the anniversary announcement, the EPA reported that as the agency moves into year six, it is committed to implementing TSCA in accordance with executive orders and other direction from the Biden-Harris Administration to restore trust, ensure scientific integrity and protect human health and the environment. Its slated implementations include:

  • Reconsidering certain approaches and assumptions used for risk evaluations under the prior Administration, including assumptions on worker use of personal protective equipment, developing a process for ensuring all routes of exposure to a chemical are included in risk evaluations, and making risk evaluations more comprehensive by ensuring potentially exposed or susceptible subpopulations are appropriately included;
  • Moving expeditiously to risk management for the first 10 chemicals to undergo risk evaluation, taking into account the reconsideration of some policy decisions made under the previous Administration to ensure the rules are fully protective of both health and the environment;
  • Improving the agency’s approach to reviewing and selecting the scientific studies that are used to inform TSCA chemical risk evaluations (known as systematic review) based on feedback received from the National Academies of Science, Engineering, and Medicine;
  • Continuing to take action on PFAS to better protect all communities from pollution. EPA is already implementing a new strategy for reviewing and managing low volume exemption requests for new PFAS before they can enter the market. The agency has also issued a proposed rule to require manufacturers (including importers) of PFAS to report information related to chemical identity, categories of use, volumes manufactured and processed, byproducts, environmental and health effects, worker exposure, and disposal;
  • Re-examining the PBT rules and making any necessary changes to them to ensure the agency is delivering on the promise to take a practical approach while also protecting human health and the environment by reducing exposure to toxic chemicals;
  • Continuing to make refinements to the agency’s approach to reviewing new chemicals to ensure they can enter the market safely and within the timeframes required by TSCA. EPA has already made several improvements, including stopping the issuance of “not likely to present an unreasonable risk” determinations based on the existence of proposed significant new use rules and assuring adequate protections for workers through regulatory means;
  • Continuing and expanding the use of test order authorities to gather additional information on chemicals in the future as needed;
  • Reexamining the rule covering the agency’s risk evaluation process to ensure that it aligns more closely with the legal and scientific requirements of TSCA; and
  • Revising the fees rule and ensuring the agency has the resources needed to implement TSCA. EPA is currently undertaking required revisions to the fees rule and will continue to work to find ways to ensure fee amounts accurately reflect actual costs of TSCA activities, fees are distributed equitably, and fee payers are identified via a transparent process. The agency’s FY 2022 budget request also includes an additional $15 million and 87 FTE to build capacity in managing chemical safety under TSCA.

Other Recent TSCA Updates

Also in June, the EPA announced policy changes surrounding the TSCA that impact the first 10 chemicals that underwent risk evaluation. The review of TSCA practices was announced earlier this year in accordance with the Biden-Harris Administration’s Executive Orders and directives.

The announcement highlights a four-pronged approach to the changes, which include Expanding Consideration of Exposure Pathways and Fenceline Community Exposure Screening Level Approach; Use of Personal Protective Equipment; Chemicals Moving to Risk Management; and Whole Chemical Approach.

In terms of Expanding Consideration, the EPA noted that under the previous administration, the risk evaluations did not assess air, water or disposal exposures to the general population because those exposures are already regulated or could be regulated. The approach to exclude these exposure pathways resulted in a “failure to consistently and comprehensively address potentially exposed to susceptible sub populations,” such as “fenceline communities” (communities near industrial facilities).

Because of this, the EPA intends to reevaluate several of the original 10 chemicals. The first six chemicals are methylene chloride, trichloroethylene, carbon tetrachloride, perchloroethylene, NMP and 1-bromopropane.

The EPA said that it was developing a screening-level approach for air and water fenceline assessments at the time, which will use existing data to determine if there is unreasonable risk. If this approach finds that there are no unreasonable risks to these communities, the EPA will move forward with its proposed risk management rulemakings. If it does find that there could be unreasonable risk, however, the EPA will conduct a more comprehensive exposure assessment.

In terms of the chemicals that have already have risk evaluations reviewed— HBCD, PV29 and asbestos (part 1: chrysotile asbestos)—the EPA says that it believes the risk evaluations are likely sufficient to inform the risk management approaches being considered and these approaches will be protective.

Moving forward, though, the EPA intends to reissue the risk determinations that amend the approach to PPE and include a whole chemical risk determination for these three chemicals.

More recently, in October, EPA Administrator Michael S. Regan announced the creation of the Agency’s PFAS Strategic Roadmap to address contamination regarding per- and polyfluoroalkyl substances.

The PFAS Strategic Roadmap officially sets a series of timelines for the EPA to take specific actions and set bolder policies regarding PFAS. In addition, the plan also pledges to conduct more research and testing on hundreds of other PFAS, potentially listing additional compounds as hazardous substances in the future to better safeguard public health, protect the environment and hold polluters accountable.

By 2023, the roadmap aims to set a final rule for PFOS and PFOA regulation in drinking water and will designate two compounds as hazardous substances. That same year, the Agency intends to provide updated research on the available methods for disposing of or destroying PFAS through landfills, thermal treatment and deep-well injection.

EPA’s integrated approach to PFAS is focused on three central directives:

  • Research - Invest in research, development and innovation to increase understanding of PFAS exposures and toxicities, human health and ecological effects, and effective interventions that incorporate the best available science;
  • Restrict - Pursue a comprehensive approach to proactively prevent PFAS from entering air, land and water at levels that can adversely impact human health and the environment; and
  • Remediate - Broaden and accelerate the human health and ecological systems.

A full copy of the PFAS Strategic Roadmap can be viewed here.


Tagged categories: American Coatings Association; American Coatings Association (ACA); Coating chemistry; Coatings; Environmental Protection Agency (EPA); EPA; Good Technical Practice; Government; Health & Safety; Health and safety; NA; North America; Safety; Toxicity

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