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EPA Issues Short-Term Implementation Measures under the Lautenberg Act

On August 26, 2016, the U.S. Environmental Protection Agency (EPA) issued two notices in the Federal Register implementing mandates of the Frank R. Lautenberg Chemical Safety for the 21st Century Act (Lautenberg Act). In one notice, EPA announced the establishment of a 14-member Science Advisory Committee on Chemicals (SACC) for purposes of providing “independent advice and expert consultation” on the scientific bases underlying risk assessments, methodologies, and pollution prevention measures supporting implementation of the Lautenberg Act. EPA will select members from the existing Chemical Safety Advisory Committee (CSAC), as well as public nominations due October 11, 2016.   

We recently wrote about the CSAC, which EPA voluntarily established earlier this year to peer review its new and existing chemical assessments, in an American Bar Association article that can be viewed here. Just last week, the CSAC endorsed the draft risk assessment for TSCA Work Plan Chemical 1-Bromopropane (CASRN 106-94-5). In earlier public comments, industry criticized this for being more akin to a screening exercise than a formal risk assessment.  

The new advisory committee will need to consist of a more diverse group of stakeholders than the present one. In recent conversations with the Office of Science Coordination Policy (OSCP), EPA indicated that the two committees will eventually be merged into one. In fact, the Federal Register notice indicates that EPA envisions filling up to 9 of the 14-member SACC slots by academics and government representatives currently serving the CSAC.

The second TSCA Reform initiative announced on August 26th is a prohibition, effective January 1, 2020, on exporting 5 mercury compounds listed in the Lautenberg Act. The Act required EPA to publish the export ban within 90 days; EPA issued the ban in a little over 60 days. The notice is consistent with, and has no changes from the mandate of the Lautenberg Act, which expanded on the Mercury Export Ban Act of 2008 banning the export of elemental mercury. The five compounds could be used to regenerate elemental mercury and are the same compounds listed in the Minamata Convention on Mercury, which the United States signed in 2013. As EPA’s notice states, they are used in small quantities in laboratory chemistry and electrochemistry and may be present in some industrial waste and byproduct streams. Extraction processes (e.g., mining) may also be impacted.

These activities demonstrate a high degree of preparedness on the Agency’s part to implement the short-term deadlines of the Lautenberg Act. They also serve as potential examples of the type of brevity we might expect from the Agency in fulfilling its mandates. Preamble language in TSCA rulemakings has historically been an important source of transparency to establish a level playing field of understanding among stakeholders. There may be no dire need to expand on the need or role of this TSCA advisory committee or the export ban, but it will be interesting to see the extent to which this expedited rulemaking approach is used in future rulemakings with more widespread impact.