TSCA Insider

TSCA Insider

Congress Weighs Asbestos, PFAS Bills, Adding To Mandatory TSCA Rules

September 22, 2021

House members are voting on defense spending legislation that would tighten EPA and other agencies’ approaches to per- and polyfluoroalkyl substances (PFAS) just as some senators are developing new legislation to ban asbestos -- potentially expanding even further the slate of legally mandated TSCA rules that EPA has already struggled to complete.

This week, environmentalists released what they said is a discussion draft asbestos bill crafted by Sen. Jeff Merkley (D-OR), and praised him for working with Sen. Steve Daines (R-MT) on the issue -- offering new hope to supporters after a 2020 bill failed in the House.

Merkley’s bill would amend the Toxic Substances Control Act (TSCA) to mandate that EPA ban use of asbestos in the United States within one year of enactment, while allowing a longer phaseout period for the chlor-alkali industry, the country’s last remaining major user of asbestos. It also requires any entity that manufactured, processed or distributed asbestos or articles containing asbestos within three years of its enactment to report those uses to the agency.

And in the House, lawmakers could soon pass the fiscal year 2022 National Defense Authorization Act (NDAA) with a raft of PFAS provisions, including several aimed at tightening its data-gathering on the chemicals through the Toxics Release Inventory (TRI) and a recently proposed TSCA reporting rule.

The bill also adds several restrictions on PFAS outside TSCA, most prominently a mandate for EPA to craft long-sought drinking water standards for the chemicals and restrictions on Defense Department purchases of products made with PFAS -- though the procurement limits are facing push-back from the White House.

But EPA has already struggled to meet TSCA’s existing deadlines for action and stand-up mandatory programs on chemicals like mercury, which has prompted calls from some environmentalists and state regulators for other agencies to assist the toxics office.

Meanwhile, states are working to implement their own legally mandated programs, such as in New York where regulators are seeking comment on more than 200 chemicals they could soon target with disclosure requirements.

But while statutory changes could quickly rewrite EPA’s priorities for chemical regulations, the exact terms Congress will impose on it remain unclear -- especially on asbestos, where even supporters have emphasized that the latest proposal is merely a draft bill.

Merkley Drafting Asbestos Ban Bill, Working With Republican Daines
Sen. Jeff Merkley (D-OR) is circulating a draft bill that would ban asbestos with language similar to one that won widespread support in the House last year before dissolving on the eve of a floor vote over the question of how broadly to apply the ban, but supporters say he is working on this version with Sen. Steve Daines (R-MT).

An array of environmental groups, unions and others opposed to asbestos, led by the Asbestos Disease Awareness Organization (ADAO), sent an open letter on Sept. 17 praising what they describe as a discussion draft asbestos bill crafted by Merkley and in collaboration with Daines -- a key difference after the 2020 version failed to attract any Republican co-sponsors in the Senate.

“We have in the Senate two members who have stepped up and shown real leadership: Sen. Merkley, a Democrat, and Sen. Daines,” Bob Sussman, a former EPA official now counsel to ADAO, said during a presentation to the group’s annual conference, held virtually this year on Sept. 17-18.

The letter thanks Merkley and Daines for their “leadership and collaboration on the draft legislation” and urges the senators to “proceed quickly to introduce the discussion draft as a bill.”

The House is moving toward a final vote on this year’s NDAA after adopting amendments that would tighten its approach to PFAS even further than originally proposed.

Lawmakers Eye NDAA To Force PFAS Rules, Broaden Reporting Mandate
House members are seeking to attach a slew of amendments to the fiscal year 2022 defense bill focused on per- and polyfluoroalkyl substances (PFAS) ahead of an imminent floor vote, including closing what critics say is a loophole in the Toxics Release Inventory (TRI) reporting requirements and setting deadlines for EPA drinking water rules.

PFAS-related amendments on the NDAA range from stronger reporting mandates under both TRI and TSCA to ordering the agency to issue drinking water standards for at least two of the best-known PFAS within two years.

In particular, the TRI amendment, offered by a bipartisan group of four House members, would immediately require companies to report all chemical releases of 100 pounds or more that include PFAS, by overruling the Trump EPA’s rule that exempts releases of mixtures where perfluorinated substances make up less than 1 percent of the total.

Another amendment would broaden EPA’s proposed TSCA reporting rule for PFAS, by specifying a broader universe of chemicals than the agency is currently planning to use. It is sponsored by Reps. Deborah Ross (D-NC) and Nancy Mace (R-SC).

EPA is already wrestling with its mandatory duties under the current TSCA, which has prompted Minnesota regulators to urge the Agency for Toxic Substances and Disease Registry to take its own look at mercury toxicity.

Minnesota Seeks New ATSDR Mercury Review As EPA Weighs Exposure Risk
Minnesota’s environmental and health agencies are urging the Agency for Toxic Substances and Disease Registry (ATSDR) to conduct new assessments of mercury and methylmercury, charging that its 20-year-old profile of the element is overdue for an update, just as EPA is weighing its own approach to both substances under the TSCA and IRIS programs.

Minnesota’s Pollution Control Agency and health department asked ATSDR to update its existing profile of mercury and to conduct a first-time review of methylmercury in joint Sept. 14 comments, responding to the agency’s call for nominations of chemicals to assess in its Tox Profiles (TP) program.

“The existing TP for mercury is more than 20 years old (1999). Given the harmful effects of mercury on human health and particularly its capacity to harm the neurodevelopment of infants and developing fetuses, an updated review for mercury is overdue,” officials from the two agencies write.

“Much the same rationale applies to our nomination for methyl mercury, the form of mercury that, when present in environmental matrices, is readily taken up by living creatures such as fish and bioconcentrates in the food chain.”

And the New York Department of Environmental Conservation (NYDEC) is seeking comment on how to implement a new chemical-labeling law after identifying 204 candidate chemicals for its first round of rulemaking.

New York Regulators Eye 204 Chemicals For Nascent Labeling Program
Officials with New York’s environment department say they have identified 204 chemicals as potential targets for regulation under the state’s new law that requires manufacturers to disclose toxic substances in toys and other children’s products, but industry groups are already raising concerns that the list could be based on incomplete toxicity data.

During a Sept. 15 stakeholder meeting, NYDEC staff said they drew on 15 “authoritative lists” of toxic chemicals developed by other states or expert bodies to compile a roster of 204 candidates for their initial list of chemicals of concern and are seeking comment on those options by Oct. 15.

Yet even ahead of any written comments, American Chemistry Council (ACC) Vice President Kimberly Wise White argued during the meeting that NYDEC’s reliance on other authorities’ findings to identify candidate chemicals could undermine its findings and asked the regulators to provide a list of the authoritative bodies or the “definition of what type of body would be considered.”

She continued, “One concern I have is some bodies only use hazard information to create a list,” underlining industry’s longstanding concern that regulatory decisions should be based on risk analysis, rather than hazard alone. She also urged regulators to explain how they reconcile differences between different bodies’ listings, and whether or how NYDEC “looks at the whole body of evidence” regarding a chemical.

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