INSIGHT: US TSCA missing deadlines for chem reviews – ACC

Al Greenwood

12-May-2022

HOUSTON (ICIS)–The US TSCA programme, which reviews the safety of chemicals, is missing deadlines, a development that is preventing the introduction of new materials and threatening manufacturing and supply chains, the American Chemistry Council (ACC) said in a recent report.

  • The TSCA programme is not completing reviews within a mandated 90 days
  • New policy changes are creating more problems
  • The EPA says the TSCA programme is underfunded

The Environmental Protection Agency (EPA) is in charge of running the programme, which is known as TSCA or the Toxic Substances Control Act.

It says it lacks the money to keep up with a workload that was increased by the 2016 Frank R Lautenberg Chemical Safety for the 21st Century Act.

The ACC supports the Lautenberg act and acknowledged that the EPA needs more money, but the regulator can take some steps that will help it review chemicals and develop rules on how to handle them safely.

TSCA AND THE CHEMICAL INDUSTRY
The TSCA programme needs to review new chemicals for safety before they can be imported or manufactured in the US.

When the EPA gets bogged down in this review process, these chemicals do not enter the market, which prevents companies from developing and introducing new materials.

Restrictions on the introduction of new materials slows down innovations for many products that could lower their costs, improve their performance or make them more sustainable.

Recent changes in the TSCA programme have made it more of a hindrance, the ACC warned.

“TSCA implementation is off track, and the EPA needs to fix it before it is too late,” said Chris Jahn, the president of the ACC. He made his comments during a press briefing.

Already, many existing chemicals play key roles in renewable energy, infrastructure and energy efficiency, all of which are policy goals of the current administration.

As it stands, the reviews for new chemicals have effectively stalled, said Ross Eisenberg, vice president of federal affairs for the ACC.

That would hinder progress for the administration’s policy goals and for manufacturing in general.

“If we don’t fix TSCA implementation now, products that consumers and critical industries will rely upon will be severely impacted, and America’s supply chain challenges will go from bad to worse,” Jahn said.

Because of the uncertainty surrounding TSCA, Eisenberg warned that some companies are choosing to make chemicals outside of the US.

In one example, an unnamed company in Europe is using its emissions of carbon dioxide (CO2) to make a green foam, Esienberg said. The company is not making the foam in the US because it would have to go through the new-chemical review process under TSCA.

PROBLEMS
The ACC issued a report that lists six problems with the TSCA programme and proposed ways to fix them.

The EPA is not evaluating the safety of a chemical based on specific uses, the ACC said.

In some cases, a chemical is used in such a way that does not need safety regulations. In other cases, the same chemical could be dangerous. In those instances, the chemical should proceed to the risk-management process, and the EPA should develop regulations that will prescribe how to safely handle the chemical.

The EPA is not taking this use-by-use approach, the ACC said. Instead, it is taking a whole-chemical approach. Under this approach, all of the uses for a chemical go into the risk-management process, regardless of specific uses that are safe.

Other issues lie in the assumptions that the TSCA programme makes about how companies handle chemicals. It assumes that companies are not following worker-safety regulations or common industry practices, the ACC said. Nor is the programme assuming that workers are using personal protective equipment (PPE).

Instead, the EPA should assume that workers are obeying the law, following industry practices and wearing PPE, the ACC said.

This relates to another problem, according to the ACC. The EPA is not taking into account how the chemicals are actually used at work or real-world risk of exposure. This is creating unnecessary and wasteful tests as well as overestimating the danger of chemicals.

Instead, the TSCA programme should base its reviews on real-life exposure scenarios and use information provided by the industry and other stakeholders, the ACC said.

The EPA has 90 days to review and approve new chemicals, but it often misses this deadline, the ACC said. The group blames the delays on a lack of expertise among EPA staff; inconsistent methods in evaluating chemicals; and poor communication with companies and other stakeholders.

The regulator should put together a plan to reform the process it uses to review new chemicals.

Another problem involves how the EPA assesses the risks that chemicals pose to air, water and waste. The EPA already has experts in these fields, but the regulator is failing to use them in its TSCA review, the ACC said.

“EPA should return to its policy of deferring to other programme offices and experts that are already better addressing air, water and waste under other environmental statutes,” the ACC said.

The EPA has increased the fees it charges to evaluate existing chemicals, the ACC said. It expects another increase in 2022, but it is unclear how the EPA is spending this money.

At the least, the EPA should justify how these fees are helping it evaluate chemicals.

LACK OF MONEY
The EPA responded to the ACC by saying that the TSCA programme has been underfunded and remains so to this day.

The Lautenberg Act greatly expanded the authority and responsibility of the EPA.

And yet, the budget for the TSCA programme has remained flat for six years, making it essentially the same size as it was before Congress passed the Lautenberg Act and expanded the EPA’s responsibilities.

For new chemicals, the Lautenberg Act requires the EPA to complete reviews for all new chemicals before they enter the market. Before, the regulatory had to do risk assessments on about 20% of new chemicals.

The EPA said it is operating with less than half of the resources it needs to review new chemicals in the way that Congress intended with the Lautenberg Act. Unless it gets more funds, the EPA will continue to struggle to quickly review new chemicals.

The Lautenberg Act also increased the EPA’s workload for existing chemicals, the regulator said. It required the agency to evaluate a batch of chemicals and to develop regulations to safely handle them. The EPA had to attend to these chemicals at once.

Because of sparse funds, the EPA missed deadlines on all but one of the first 10 evaluations.

The Government Accountability Office (GAO) – which acts as a congressional auditor – said that a key challenge to implementing TSCA is ensuring that the EPA had enough resources.

The EPA’s Office of Inspector General (OIG) also chimed in, saying that the regulator could miss more deadlines because it has not identified the additional resources it needs to perform the reviews.

Until recently, government has done little to provide the EPA with more money.

In 2016-2020, the administration of President Donald Trump never asked Congress to provide additional resources to TSCA, the EPA said. Senior career managers never got permission to determine how much money the EPA would need to implement the amended law.

The EPA did note that Congress authorised it to levy fees to offset up to 25% of the costs of implementing TSCA. However, those fees did not become effective until the fiscal year of 2019, and they were set against a low baseline.

The fees also excluded reviews of the first 10 existing chemicals, which the EPA said were the most expensive.

As it stands, the regulator is collecting 13% of the authorised costs of TSCA, not the 25% authorised by Congress.

MORE FUNDS
The budget proposal of President Joe Biden calls for $64m to fund the TSCA programme, the EPA said.

The regulatory has taken some steps of its own to improve the TSCA review process.

Insight by Al Greenwood

Thumbnail shows a chemical flask. Image by Design Pics Inc/REX/Shutterstock

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