EPA’s action plans signal a new chapter for TSCA while informing the future legislative debate on chemicals

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Late last December, U.S. Environmental Protection Agency (EPA) Administrator Lisa P. Jackson announced action plans on phthalates, long-chain chlorinated paraffi ns (LCCPs), and short-chain chlorinated paraffi ns (SCCPs). Th e four action plans are the fi rst of many, as EPA intends to issue eight more or so in 2010. Th is EPA initiative announces actions that are almost breathtaking in scope, and its development and implementation of the action plan items will set a number of new precedents—and possibly shape future legislative proposals— that industry will need to participate in and monitor closely. EPA has never previously announced so many actions under the Toxic Substances Control Act (TSCA), nor has it ever cited use of §6 so widely. Moreover, that it was issued in this form after being reviewed by the Offi ce of Management and Budget is signifi cant and portends potentially great and largely unfettered EPA activity in the months to come. A fi nal point is to recognize EPA’s decision to rely on the Offi ce of Pollution Prevention and Toxics’ (OPPT’s) Design for the  Environment (DfE) program to assist in conducting alternatives assessments for two of the chemical classes (phthalates and PBDEs). Th e DfE program’s previous alternatives assessments have been open to participation by industry as well as other stakeholders in a forum that allows for complex issues and difficulties to be explained and addressed.

Th e action plans, discussed in more detail below, summarize available hazard, exposure, and use information; outline the risks that each chemical may present; and identify specifi c steps EPA is taking to address those concerns. According to EPA, “[a]s those actions begin, there will be opportunities for public and stakeholder comment and involvement.” EPA states that its actions “represent its determination to use its authority under the existing TSCA to the fullest extent possible, recognizing EPA’s strong belief that the 1976 law is both outdated and in need of reform.”

Administrator Jackson also announced that EPA intends to establish a “Chemicals of Concern” list and commence a process that may result in regulations requiring “signifi cant risk reduction measures” to protect human health and safety. Th e Chemicals of Concern list will rely on EPA’s authority under TSCA §5(b)(4)(A)(i), which authorizes EPA by rule to “compile and keep current a list of chemical substances with respect to which the Administrator fi nds that the manufacture, processing, distribution in commerce, use, or disposal, or any combination of such activities, presents or may present an unreasonable risk of injury to health or the environment.” Th is section of TSCA, previously described as the “Risk List,” has not otherwise been used by EPA. Th e listing requires a rulemaking and a fi nding that a chemical “presents or may present an unreasonable risk,” and EPA’s announcement emphasizes the “may present” arm of the fi ndings. When the George W. Bush Administration raised the possibility of using the §5(b)(4) listing under the Chemical Assessment and Management Program, industry raised a number of “black list” concerns in its comments. Th us, any such list is likely to be targeted as a presumptive “hit” list not unlike the European Union’s Registration, Evaluation, Authorization, and Restriction of Chemicals authorization candidate list. More information is available on the action plans and the Chemicals of Concern list at http:// www.epa.gov/oppt/existingchemicals.

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