EPA has not regulated a chemical under TSCA § 6, which provides for regulation of existing as opposed to new chemicals, since 1989, when it adopted a ban on asbestos which was subsequently overturned by a federal Court of Appeals. This 27-year hiatus appears to be coming to an end, as EPA has indicated that it is expects to propose three such rules by late 2016. As part of these rulemakings, EPA convened Small Business Advocacy Reviews (SBARs) on June 15, 2016. These SBARs were for trichloroethylene (TCE) in vapor degreasing and for methylene chloride (dichloromethane or “DCM”) and n-methyl pyrollidone in paint stripping. Although such an SBAR would seem equally necessary under the Regulatory Flexibility Act for the third rulemaking (TCE in spot cleaning and aerosol spray degreasing), no such panel has yet been convened.
This article reviews how EPA is approaching implementation of TSCA § 6 in light of its presentations at these meetings, and previews how EPA will move forward in the new legal landscape following enactment of the Frank R. Lautenberg Chemical Safety for the 21st Century Act. It should be of particular relevance to manufacturers of basic commodity chemicals, such as chlorinated hydrocarbons and formaldehyde.