On Friday, May 11, California’s Department of Toxic Substances Control (DTSC) issued a notice that it is considering listing laundry detergent that includes nonylphenol ethoxylates (NPE) as a “priority product” under its Safer Consumer Products regulations. If DTSC finalizes a rule listing the product, it will kick off an alternatives assessment process, during which manufacturers, sellers, importers, and distributors of the product will have to evaluate alternatives to the use of NPE, and which may result in DTSC concluding that NPE in laundry detergent should be phased out and replaced with a “safer” alternative. Regardless, the alternatives assessment process is a time-consuming and cost-intensive process, and will be subject to a lot of scrutiny from DTSC and third parties.
Last summer, EPA finalized the TSCA Inventory Notification (Active-Inactive) Requirements, 82 FR 4255 (Active/Inactive Rule), which we previously reported on here . As a reminder, the Active/Inactive Rule requires manufacturers and processers to submit notifications to EPA for chemicals that have been manufactured or processed between June 21, 2006 and June 21, 2016. The deadline for submittal of the required reports by manufacturers – February 7, 2018, is quickly approaching.
On August 11, 2017, the Office of the Federal Register published the third of EPA’s three rules implementing the Frank R. Lautenberg Chemical Safety for the 21st Century Act, the TSCA Inventory Notification (Active-Inactive) Requirements, 82 FR 4255 (Active/Inactive Rule). We reported on the two previously published rules as well as a pre-publication version of the Active/Inactive Rule here. As a reminder, the Active/Inactive Rule requires manufacturers and processers to submit notifications to EPA with regard to chemicals that have been manufactured or processed between June 21, 2006 and June 21, 2016. The Active/Inactive Rule also sets forth the logistics for submitting the notifications, potential exceptions from the notification requirements, and procedures for handling confidential business information (CBI).
On July 20, 2017, EPA published in the Federal Register two final rules intended to begin implementation of the Frank R. Lautenberg Chemical Safety for the 21st Century Act (Lautenberg Act), which significantly reformed the Toxic Substances Control Act (TSCA). The two final rules are the Procedures for Prioritization of Chemicals for Risk Evaluation Under the Toxic Substances Control Act, 82 Federal Register 33753 (Prioritization Rule) and Procedures for Chemical Risk Evaluation under the Amended Toxic Substances Control Act, 82 FR 33726 (Risk Evaluation Rule). A third TSCA framework rule—the TSCA Inventory Notification (Active/Inactive) Requirements rule (Inventory Rule)—has not yet been published in the Federal Register, although a pre-publication version was released in June 2017 (we previously reported on all three proposed rules here). Together, these three rules will help the Agency implement the extensive reforms set out in motion by the Lautenberg Act.
The Prioritization Rule and the Risk Evaluation Rule will become effective on September 18, 2017. Upon publication of the Active/Inactive Final Rule in the Federal Register – which EPA has indicated will become effective upon publication – a 180-day clock will be triggered for affected manufacturers, and affected processors must comply within 420 days of publication.
Finally, EPA published the notice of availability of Guidance to Assist Interested Persons in Developing and Submitting Draft Risk Evaluations, a guidance document intended to assist stakeholders with developing and submitting their draft risk evaluations, and has uploaded draft scoping documents for the first ten chemicals for which EPA is required to perform risk evaluations under the Lautenberg Act to its website (EPA’s initiation of the risk evaluation for these ten chemicals was previously discussed here).
As part of its implementation of the Frank R. Lautenberg Chemical Safety for the 21st Century Act, Public Law 114-182E reforming the Toxic Substances Control Act (“TSCA”), EPA recently published two proposed rules, including a proposed rule that would govern the process for active/inactive designations and a proposed rule that would establish the procedure for prioritizing chemicals for risk evaluation. Notably, although EPA has released a pre-publication of a third rule – proposing the process for performing a risk evaluation – that proposal appears to have been caught up in the Administration transition and has not yet been published in the Federal Register.
On November 29, 2016, EPA announced the first ten chemicals for which the Agency will perform a risk evaluation under the Toxic Substances Control Act (“TSCA”), as reformed by the Frank R. Lautenberg Chemical Safety for the 21st Century Act, passed earlier this year. As part of this review, EPA will evaluate whether the chosen chemicals “present an unreasonable risk of injury to health or the environment.”