Industry groups find statutory shortcomings in TSCA ban proposal

The American Chemistry Council and other industry groups have concerns that the US EPA's first proposal to ban a substance under the revised TSCA fails to meet the requirements of the new law.

Their comments came in response to the agency's proposal, under TSCA section 6, to ban trichloroethylene (TCE) as an aerosol degreaser and for spot cleaning in dry cleaning facilities – its first effort to ban a substance under this mechanism in nearly three decades.

But addressing the proposal's "precedential nature", the ACC said these rules "must clearly comport with TSCA sections 6 and 26 requirements, which include a risk management decision, consistent with the scope of the prior completed risk assessment, and a requirement that all decisions be based on the best available science, among others."

Instead, it said, the proposed requirements "extend beyond the limited scope of the risk assessment" conducted on TCE prior to TSCA reform.

And with regard to 'best available science' obligations, as outlined in TSCA section 26, it said the agency makes assumptions without adequate justification, and it is "thus unclear whether EPA relied upon relevant science to inform its judgment; whether that science was reliable, or the best quality available".

Economic analysis

The ACC said the agency's economic analysis also falls short. Risk management actions under TSCA must take costs and benefits into account, but the trade group says the EPA's analysis "has significant inaccuracies and shortcomings", including:

• • an assumption of "virtually no switching costs" for manufacturers and consumers, a deficiency it says that could "easily be improved through reasonably ascertainable information";

• • underestimates of compliance and enforcement costs;

• • a lack of specificity in analysing the “discrete benefits” of TCE;

• • the absence of a quantified welfare loss to consumers; and

• • a failure to fully consider the costs and benefits of alternative regulatory approaches.

Indeed, with regard to these regulatory alternatives, the ACC said it "strongly believes EPA should perform a more thorough investigation and seek a greater understanding of risk management options before proposing any particular course of action."

This should include deeper exploration of labelling, personal protective equipment (PPE) and substitution risk considerations, with the agency backing with scientific studies any conclusions it reaches on the merits and drawbacks of these approaches, it said.

Section 9 concerns

The Chemical User Coalition – a cross-industry group of nine major companies, including Intel, Boeing, Honda and Procter & Gamble – criticised the EPA’s interpretation of section 9(a), which requires it to engage other agencies which have overlapping jurisdiction over chemical substances – namely, the Consumer Product Safety Commission (CPSC) and the Occupational Safety and Health Administration (Osha).

The EPA said, in its proposal, that the CPSC and Osha lack the authority to bar the manufacture, processing and distribution for the uses it has proposed to ban, and therefore neither can sufficiently address the identified unreasonable risk, as a matter of law.

But the coalition said the EPA’s arguments "logically apply to virtually any other section 6 rule under consideration". And it says it is "concerned that the agency is essentially creating a general policy aimed at avoiding section 9(a) referrals for all of its section 6 rules".

NGOs back agency approach

In contrast, several NGOs say the agency's approach is warranted and supported by the law.

Safer Chemicals, Healthy Families – in comments backed by more than 30 NGOs – said the EPA has correctly applied the risk management frameworks required by section 6 in a manner that will "set an important precedent" for future rulemakings.

And it said the agency's "transparent and fully documented risk assessment, based on peer-reviewed data, methods and findings, easily meets section 26(h)'s good science benchmarks".

The Environmental Defense Fund (EDF) agreed that the proposed actions are "appropriate and necessary to address unreasonable risks identified".

It also provides evidence for why alternative control methods, like PPE or labelling, would be insufficient.

"If the new TSCA law cannot be used to address such compelling and clear risks, it will be a dead letter before it is implemented," added SCHF.