On November 29, 2016, the United States Environmental Protection Agency (EPA) announced the first ten chemicals it will prioritize for risk evaluation under the recent legislative amendments to the federal Toxic Substances Control Act of 1976 (TSCA). Asbestos has been included in EPA’s priority list. This portends that EPA may attempt to restrict or ban asbestos-containing products and/or their manufacture, importation, processing, or distribution in commerce through its authority under TSCA. Previous attempts by the agency to restrict or ban asbestos through rulemaking have been unsuccessful.

The issuance of the priority list was required by the Frank R. Lautenberg Chemical Safety for the 21st Century Act, which was signed into law by President Obama on June 22, 2016. The Act made significant changes to TSCA and required EPA to publish a list of 10 priority chemicals by December 19, 2016. According to EPA, these ten chemicals were selected based on multiple factors, including their prevalence as environmental contaminants, their widespread use, especially in consumer products, and their perceived or known hazards.

The issuance of EPA’s priority list triggers the requirement that the agency complete a risk evaluation for each of the ten chemicals within three years. These evaluations will determine whether the chemicals present an unreasonable risk to humans and the environment. If an unreasonable risk is found, EPA must take action to mitigate that risk within two years.

In general, TSCA authorizes EPA to require reporting, record-keeping and testing requirements, and restrictions relating to chemical substances and/or mixtures. It does not apply to certain substances, such as food, drugs, cosmetics and pesticides, which are separately regulated. With the Lautenberg Act, EPA now has the power to require safety reviews of all chemicals in the marketplace. This is a fundamental shift in the requirements and approach for addressing chemical safety under TSCA. EPA has stated that the amendments to TSCA will allow the government to better protect public health and the environment.

The TSCA amendments focus on risks to human health and the environment. A new health-based safety standard of review has replaced the former cost-benefit standard. If EPA determines that a chemical such as asbestos poses an unreasonable risk, it must promulgate use standards, and could further impose additional restrictions or even a ban on the entry of the chemical into U.S. commerce. In 1989, EPA banned asbestos and attempted to phase out its use by rule, but the rule was overturned on the grounds that EPA failed to provide an adequate justification for the complete ban. Corrosion Proof Fittings v. EPA, 947 F.2d 1201 (5th Cir. 1991).

The other nine chemicals on EPA’s priority list are subject to the same process and potential restrictions or ban as asbestos. They are: 1,4-Dioxane, 1-Bromopropane, Carbon Tetrachloride, Cyclic Aliphatic Bromide Cluster, Methylene Chloride, N-methylpyrrolidone, Pigment Violet 29, Tetrachloroethylene, also known as perchloroethylene, and Trichloroethylene. Notably, bisphenal A (BPA), the ingredient in plastic bottles that many companies have ceased using due to public concerns, was not included on EPA’s list, suggesting that the agency does not consider BPA a significant threat to the public.

Additional chemicals will be designated later for evaluation, including a group of 90 chemicals identified by EPA under the TSCA amendments. For each risk evaluation that EPA completes, TSCA requires that EPA begin another. By the end of 2019, EPA must be performing 20 chemical risk evaluations at any given time.

Additional information on the priority chemicals can be found on EPA’s website here. For additional information or legal guidance, contact Leslie G. Wolfe at (216) 928-2927 or lwolfe@walterhav.com. Leslie is an associate in Walter | Haverfield LLP’s Litigation Services Group.