On December 29, the chemicals program at EPA closed out 2021 by proposing revisions to its risk determinations for the Cyclic Aliphatic Bromide Cluster (HBCD), a solvent used as a flame retardant and wetting agent which has not been manufactured in the United States in nearly five years. In doing so, the Biden EPA made good on its June 2021 promise to revisit risk determinations previously made during the Trump Administration in accordance with the Toxic Substances Control Act (TSCA). The draft “revisions” represent a significant shift from EPA’s prior approach to existing chemical risk evaluation and foreshadow increased regulatory and litigation risk for all companies—not just those whose operations may have historically involved HBCD.

Continue Reading Why EPA’s Announcement about a Chemical No Longer Manufactured is Big News for your Business

In a dramatic announcement last week, EPA suggested that if companies import, manufacture, or process a finished good for commercial sale, and that product is not a pesticide, not a firearm, not a tobacco product, and not a food, food additive, drug, cosmetic, or device, they will need to know all chemicals contained in those products. We explain more about this below.

EPA has traditionally declined to extend most of its chemical regulations to finished goods, which are known as “articles” under the Toxic Substances Control Act (TSCA), on the grounds it would be enormously difficult for importers of complex consumer products to determine the chemical identity of each chemical substance in these products. Industry stakeholders have generally supported this approach and have long taken the position that supply chains are too complex to expect finished product manufacturers to be aware of all chemicals in those products.

Continue Reading EPA May Require Companies To Know All The Chemicals In Products They Make Or Sell

On January 26, 2021, a coalition of advocacy groups and prominent asbestos plaintiffs’ experts launched two challenges to “Part 1” of the asbestos risk evaluation recently released by the United States Environmental Protection Agency (EPA).  EPA concluded in Part 1 that 16 of the 32 “conditions of use” analyzed pose an “unreasonable risk” to human health, but advocacy groups have criticized EPA for only addressing risks associated with chrysotile asbestos and excluding review of other fiber types.  Now, those groups have teamed up on a pair of legal challenges that could force EPA to revisit its Part 1 asbestos risk evaluation, which could delay risk management regulations.
Continue Reading Advocacy Groups and Plaintiffs’ Experts Launch Two Challenges to EPA’s Asbestos Risk Evaluation – Are EPA Settlements Possible?

On November 9, 2020, EPA’s Office of Research and Development (ORD) released its long-awaited draft handbook that details the office’s process for developing chemical hazard assessments for its Integrated Risk Information System (IRIS) Program. The ORD Staff Handbook for Developing IRIS Assessments (IRIS Handbook) gives useful insight into ORD’s process to develop its IRIS assessments, which provide important toxicological information that federal and state environmental agencies consider when making regulatory and cleanup decisions under multiple statutory programs. EPA will accept comments on the draft handbook and charge questions until March 1, 2021.

Continue Reading EPA Releases Long-Awaited IRIS Handbook, But has Anything Changed?

Companies that manufacture or import products containing one or more of 20 common chemicals may soon be required to disclose those activities and pay fees to offset the United States Environmental Protection Agency’s (EPA) review of those chemicals under the Toxic Substances Control Act (TSCA). In December 2019, EPA finalized its list of 20 high-priority chemicals for risk evaluation and potential regulation under TSCA:

  • Formaldehyde, a chemical commonly used in building products and as a preservative;
  • Five phthalates used as plasticizers in products like plastic pipes, toys, food packaging, cosmetics and medical/dental products (BBP, DBP, DEHP, DIBP and DCHP) and one chemical used to make phthalates (phthalic anhydride);
  • Three flame retardants (TBBPA, TCEP and TPP) and a chemical sometimes used in the manufacture of flame retardants and fire extinguishers (ethylene dibromide);
  • A fragrance additive found in perfumes, cosmetics and other consumer products (HHCB, also known as galaxolide);
  • Seven chlorinated solvents found in products like cleaning solutions, paint thinners and glues (1,1-dichloroethane, 1,2-dichloroethane, 1,2-dichloropropane, o-dichlorobenzene, p-dichlorobenzene, trans-1,2-dichloroethylene and 1,1,2-trichloroethane); and
  • A chemical used to manufacture synthetic rubber (1,3-butadiene).


Continue Reading EPA Reportedly Expecting Manufacturers and Importers of Products Containing 20 Common Chemicals to Self-Report and Share in Costs of Chemical Risk Evaluations

In December 2018, an article in this blog flagged a petition for EPA rulemaking under the Toxic Substances Control Act (TSCA) that, if denied, had the potential to set up precedent-setting litigation on citizens’ ability to use the courts to require EPA action under TSCA. Now, nearly a year later, the scenario that article described is coming true. In a challenge to EPA’s denial of that petition, a federal district court is poised to decide what constitutes a petition for issuance of a new rule as opposed to one for amendment of an existing rule—and in the process, to decide when a court may cast aside deference to EPA and undertake its own evaluation independent of the Agency’s record and conclusions.
Continue Reading Federal District Court Poised to Consider Petition for Issuance of a New Rule Versus Petition for Amendment of an Existing Rule

On March 15, 2019, the House Subcommittee on Environment and Climate Change held a hearing titled, “Protecting Americans at Risk of PFAS Contamination & Exposure.” The hearing examined approaches to eliminate or reduce environmental and health risks to workers and the public from per- and polyfluoroalkyl substances (PFAS). At the hearing, there was discussion of proposed PFAS Legislation.
Continue Reading House Conducts PFAS Hearing

A recent petition for rulemaking could lay the groundwork for the latest test of TSCA’s citizen petition provisions—with the potential to set new precedents and interfere with EPA’s ongoing risk evaluation for asbestos.
Continue Reading TSCA Citizens’ Petition on Asbestos Raises Specter of Precedent-Setting Litigation

This summer, EPA sparked public outrage with its proposed “significant new use” rule, or SNUR, addressing certain commercial uses of asbestos. Publications criticized EPA for loosening its regulations to pave the way for asbestos to be reintroduced to the market, allowing asbestos-containing construction materials to be used in homes and other buildings again for the first time in decades. There’s just one issue: EPA’s proposed action does the opposite of what these critics claim.
Continue Reading No, EPA Isn’t Putting Asbestos Back Into Buildings

On May 9, the White House released its Spring 2018 update to EPA’s regulatory agenda. Agency watchers quickly dove into the document to check the status and timelines for high-profile rulemakings and gain insights on the Trump administration’s priorities. But aside from any revelations about the administration’s own initiatives, this latest document was also notable for showing just how much EPA’s regulatory agenda can be driven by forces outside of the executive branch. A substantial portion of the actions on EPA’s regulatory agenda are included because they are mandated by law and are subject to legally binding deadlines.
Continue Reading Setting the Agenda from the Outside: EPA’s Latest Regulatory Plan Demonstrates the Power of Deadline Suits