Articles

The standard of judicial review for most critical TSCA determinations under section 19 is “substantial evidence in the record taken as a whole”. This is a tough standard, considerably more rigorous than the Administrative Procedure Act (APA) standard under section 706, where agency action will be set aside if it is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” The recent Loper Bright decision overturning Chevron has...

On 28 March, the Environmental Protection Agency (EPA) issued its long-awaited first final risk management rule under the Toxic Substances Control Acta (TSCA), banning the import and eventual use of chrysotile asbestos. This is the only form of asbestos known to be used in the US. You may be thinking now that because your company does not import or use asbestos, this does not affect you. You should care about it because the EPA’s approach...

The US Environmental Protection Agency (EPA) recently issued final risk management rules under the Toxic Substances Control Act (TSCA) banning certain uses of two chemicals: chrysotile asbestos and methylene chloride. The identity of these two chemicals is less important than the process by which the EPA concluded that the banned uses of these chemicals pose unreasonable risks to human health and the environment, and the nature and intrusiveness of the workplace and other restrictions the...

A federal district court recently issued an Order to enjoin enforcement of California’s Proposition 65 warnings related to titanium dioxide in cosmetics and personal care products. This is the third case successfully challenging Prop 65 warnings on First Amendment grounds, with previous cases involving glyphosate and acrylamide, as discussed in our FIFRA blog. These are important cases with implications for companies facing Prop 65 warnings for other substances where the underlying...

The U.S. Environmental Protection Agency (EPA) issued on May 8, 2024, a final rule under the Toxic Substances Control Act (TSCA) to address the unreasonable risk of injury to health presented by methylene chloride under its conditions of use (COU). To no one’s surprise, the EPA banned most uses of the chemical. However, surprisingly, the EPA also adopted a de minimis threshold to account for impurities and the unintended presence of methylene chloride. The final...

A critical element of the U.S. Environmental Protection Agency’s (EPA) Draft National Strategy to Prevent Plastic Pollution (Strategy) is to “improve post-use materials management.”  The Strategy identifies potential voluntary actions EPA believes can be implemented to prevent plastic waste. Plastics recycling, both mechanical and “advanced,” is core to achieving improved post-use plastics materials management. Post-use plastics management, in turn, is core to achieving circularity....

This past March, the U.S. Environmental Protection Agency (EPA) issued its first final risk management rule under the Toxic Substances Control Act (TSCA) to address the unreasonable risk of chrysotile asbestos to human health under certain conditions of use (COUs). Even if asbestos isn’t in your supply chain, don’t hit the brakes on reading further. All TSCA stakeholders need to understand this rule because it is a template for how the agency will address risk...

On March 6, 2024, the U.S. Environmental Protection Agency (EPA) promulgated revised National Ambient Air Quality Standards (NAAQS) for particulate matter (PM). The final rule was signed on Feb. 7, 2024. New NAAQS standards are always controversial, and this one is no exception. ...

On Jan. 26, 2024, the U.S. Occupational Safety and Health Administration (OSHA) issued updated enforcement guidance regarding compliance with OSHA’s standard for the Process Safety Management of Highly Hazardous Chemicals (PSM standard). The new directive, CPL 02-01-065, provides much-needed updates to the guidance issued in 1994 and explains OSHA’s current thinking regarding compliance with the PSM standard. ...

First, let’s look at U.S. policy and regulatory developments. In this election year, competing priorities will dominate U.S. Environmental Protection Agency (EPA) actions. The agency will seek to complete as many actions as possible while tempering its expectations to avoid any significant pre-election missteps. While there is no consensus on whether the Biden administration’s commitment to policy shifts in chemical management has elicited desirable results, reasonable people will agree it...

No discussion of energy issues would be complete without some mention of the utility of used plastic as a feedstock in the production of fuels, energy and building block chemicals. In spring 2023, the US Environmental Protection Agency (EPA) released its Draft National Strategy to Prevent Plastic Pollution (Strategy) to identify voluntary actions to prevent plastic waste. Plastics recycling, including both mechanical and ‘advanced’, is core to achieving improved post-use plastics materials...

It seems like yesterday when the U.S. Environmental Protection Agency (EPA) issued a final rule prohibiting isopropylated phosphate (3:1) (PIP (3:1)), and for many in the manufacturing sector, the world got a little bit crazier. The EPA vowed to revise the final rule and did so on Nov. 24, 2023. The EPA’s proposal would amend the regulations for decabromodiphenyl ether (decaBDE) and PIP (3:1), two of the five persistent, bioaccumulative and toxic (PBT) chemicals addressed in...

Unsurprisingly, the U.S. Environmental Protection Agency (EPA) proposed on Oct. 31, to ban all uses of trichloroethylene (TCE) after determining it presents an unreasonable risk of injury to human health under conditions of use pursuant to the Toxic Substances Control Act (TSCA). TCE is widely used in cleaning and furniture-care products, degreasers, brake cleaners and tire repair sealants. Alternatives are available for many uses. The proposed rule would ban TCE’s manufacture, processing...

Ask just about anyone doing business in the US making or importing products that contain chemicals what they think about the US Environmental Protection Agency’s (EPA’s) new per- and polyfluoroalkyl substance (PFAS) reporting rule, and you will get a decidedly grumpy response. Granted, no businessperson welcomes any new chemical reporting obligation, but by any standard, the EPA’s 11 October 2023 final PFAS reporting rule is problematic and is inviting uniquely scathing criticism....

On September 28, 2023, the U.S. Environmental Protection Agency (EPA) released its long-overdue final rule under Section 8(a)(7) of the Toxic Substances Control Act (TSCA). The rule requires reporting and recordkeeping requirements for per- and polyfluoroalkyl substances (PFAS). As discussed in this article, the final rule is not what many of us expected nor wanted....

Sustainable chemistry has become more central to business success than ever. Societal preferences and climate change implications are pressuring product manufacturers to develop, use and process sustainable chemicals. This trend is here to stay, and cultural, legal and regulatory drivers accelerating this trend are growing exponentially....

In a somewhat unexpected move, Congress enacted the Modernization of Cosmetics Regulation Act of 2022 (MoCRA) on December 29, 2022, as part of the Omnibus Appropriations Act. MoCRA significantly strengthens the U.S. Food and Drug Administration’s (FDA) authority over cosmetic products. Key provisions are summarized in this article....

The U.S. Environmental Protection Agency (EPA) announced on June 29, 2023, a new regulatory framework for addressing new per- and polyfluoroalkyl substances (PFAS) and new uses of existing PFAS. The framework outlines the EPA’s planned approach when reviewing these chemicals to ensure that, before they are allowed to enter commerce, they meet the safety standard under Section 5 of the Toxic Substances Control Act (TSCA). This article explains the significance of this development....

On June 20, 2023, the U.S. Environmental Protection Agency (EPA) proposed significant new use rules (SNURs) under the Toxic Substances Control Act (TSCA) for 18 chemicals subject to premanufacture notices (PMNs). The rulemaking reflects a level of EPA discomfort with certain new chemicals derived from plastic waste. This article explains the significance of this proposal....

Few words inspire the panic that ‘polyfluoroalkyl substance (PFAS)’ does. Companies producing, processing, distributing and using (whether knowingly or not) these substances must be aware of expanding legal liability and take steps now to minimise risk. This article outlines key US per- and PFAS developments, the legal and commercial implications of these developments, and measures stakeholders should consider taking to limit liability....