Aug 31, 2016

EPA Creates Science Advisory Committee on Chemicals, Is Accepting Nominations to Help Implement Updated TSCA

(PAINT.ORG) On August 26, the U.S. Environmental Protection Agency (EPA) published a notice for the establishment of a newly-formed Science Advisory Committee on Chemicals (SACC) under the Federal Advisory Committee Act (FACA) section 9(a) to provide advice and recommendations on the scientific basis for risk assessments, methodologies, and pollution prevention measures or approaches. Under Section 2625(o) of the Frank R. Lautenberg Chemical Safety for the 21st Century Act, which amends the Toxic Substances Control Act (TSCA), EPA is required to establish the SACC within one year of enactment. The purpose of the 14-person committee will be to provide "independent advice and expert consultation" with respect to scientific and technical aspects of issues relating to TSCA implementation.

Under the updated law, EPA is required to select representatives from science, government, labor, public health, public interest, animal protection, industry, and "other groups EPA determines to be advisable," including representatives that have specific scientific expertise in the relationship of chemical exposures to women, children, and other potentially exposed or susceptible subpopulations, to serve on the committee. EPA is also required under the law to convene the SACC periodically but not less frequently than once every two years. According to the notice, EPA expects the SACC to meet 3-4 times a year or as needed by the approved Designated Federal Officer.

The notice published in the Federal Register states that potentially nine of the 14 members of the SACC will be selected from interested and available members of the existing EPA Chemical Safety Advisory Committee (CSAC). The remaining five committee spots will be selected from the general public based on nominations. EPA is accepting nominations from the public and comments until Oct. 11, 2016.

EPA encourages members of the public who are involved in the manufacture, processing, distribution, disposal and/or interested in the assessment of risks involving chemical substances and mixtures to apply. EPA states that nominations should include "candidates who have demonstrated high levels of competence, knowledge, and expertise in scientific/technical fields relevant to chemical risk assessment and pollution prevention. In particular, the nominees should include representation of the following disciplines, including, but not limited to: Human health and ecological risk assessment, biostatistics, epidemiology, pediatrics, physiologically-based pharmacokinetics (PBPK), toxicology and pathology (including neurotoxicology, developmental/reproductive toxicology, and carcinogenesis), and chemical exposure to susceptible life stages and subpopulations (including women, children, and others)."

EPA is also seeking candidates who have professional experiences in government, labor, public health, public interest, animal protection, industry, and other groups, as the EPA Administrator determines to be advisable; candidates who have skills and experience working on committees and advisory panels; candidate who do not have financial conflicts of interest or the appearance of a loss of impartiality; and candidates who are willing to commit adequate time for the thorough review of materials provided to the committee and participate in committee meetings.

The SACC is expected to provide consultation on a number of forthcoming rulemakings EPA will be rolling out over the next several months. EPA has announced the intention of releasing proposed rules by December 2016 to 1) establish fees for certain TSCA activities, 2) prescribe the prioritization process for existing chemicals, 3) prescribe the risk assessment methodology for chemicals selected to undergo safety reviews under Section 6 of TSCA, and 4) establish the reporting requirements to "reset" the TSCA Inventory. EPA also seeks to finalize these proposed regulations by the summer of 2017 in compliance with the statutory deadlines under the Lautenberg Act.

Additionally, EPA is expected to release four risk management proposed regulations under Section 6 of TSCA — which EPA has not done since 1989 — by December 2016: trichloroethylene (TCE) in vapor degreasing, TCE in spot cleaning and aerosol spray degreasing, methylene chloride (DCM) and n-methyl pyrollidone (NMP) in paint strippers. Further, under TSCA, the reporting period for chemical data reporting (CDR) submissions closes on Sept. 30, 2016 — a process manufacturers and importers of chemical substances must go through every four years — and EPA continues to evaluate new chemical notices under Section 5 of TSCA pursuant to the new, heightened TSCA requirements. EPA has released seven determinations thus far that the new chemical substances were "not likely to present an unreasonable risk," but Agency must continue reviewing over 300 pending PMNs in a timely manner.

Since the passage of the Lautenberg Act in June 2016, EPA has already been active gathering preliminary input from stakeholders through two public meetings held in August that outlined proposals for prioritization and risk evaluations, a consultation with stakeholders regarding potential user fees for TSCA, and opened the docket for public comment on these three topics.

For the user fee consultation, EPA asked stakeholders the following questions:

To be able to defray 25 percent of costs of administering Sections 4, 5 and 6, and Confidential Business Information (CBI), does industry have considerations of weight amongst the three areas of fee collection?
Does industry have thoughts on the types of factors (types of submissions, numbers of submissions, level of difficulty, etc.) that EPA should consider when structuring the fees?
Has industry considered how to distribute payment amongst multiple manufacturers and/or processors?
Does industry have thoughts on how to identify the whole universe of manufacturers, including importers and processors affected?
Does industry have thoughts on how to arrive at an appropriate balance between manufacturers and processors?
Also last week, EPA published a list of mercury compounds that are prohibited from export, which it was also required to do under the Lautenberg Act within 90 days of enactment. Effective Jan. 1, 2020, the statute prohibits export of: Mercury (I) chloride or calomel; mercury (II) oxide; mercury (II) sulfate; mercury (II) nitrate; and cinnabar or mercury sulphide, unless those mercury compounds are exported to member countries of the Organization for Economic Co-operation and Development for environmentally sound disposal, on the condition that no mercury or mercury compounds so exported are to be recovered, recycled, or reclaimed for use, or directly reused, after such export. With this substantial work load, the SACC is expected to play an active role in advising on the many regulatory proposals to come.

For more information on the panel and to submit nominations, visit, docket number EPA–HQ–OPPT–2016–0474. If ACA members are interested in being nominated to serve on the SACC to provide consultation for TSCA implementation, please contact ACA staff as soon as possible. 

To learn more about EPA's progress and updates on TSCA implementation...

EPA Proposes Changes to Regulations Governing Significant New Use Rules under TSCA

The U.S. Environmental Protection Agency (EPA) has published a proposed rule that would revise the regulations governing significant new use rules (SNURs) under the Toxic Substances Control Act (TSCA) to align these regulations with revisions to the Occupational Safety and Health Administration's (OSHA) Hazard Communication Standard (HCS). The proposed rule also seeks to align the SNUR requirements with changes to the OSHA Respiratory Protection Standard and the National Institute for Occupational Safety and Health (NIOSH) respirator certification requirements pertaining to respiratory protection of workers from exposure to chemicals. EPA is also proposing changes to the significant new uses of chemical substances regulations based on "issues that have been identified by EPA and issues raised by public commenters, as well as minor changes to reporting requirements for pre-manufacture notices (PMNs) and other TSCA section 5 notices. EPA is accepting comments on these proposed changes until Sept. 26, 2016.

Section 5 of TSCA governs EPA's New Chemicals Program, which helps manage the potential risk to human health and the environment from chemicals new to the marketplace. Under Section 5, companies are required to submit notices to EPA at least 90 days before they manufacture or import a new chemical substance in U.S. commerce, or manufacture or process a substance or mixture for a "significant new use." EPA is authorized to determined that a use of a chemical substance is a "significant new use" by rule by issuing an SNUR. EPA makes this determination by considering relevant factors....

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Paint CoatingsTech Conference to Feature Dedicated Regulatory and Sustainability Focus

ACA's 2017 CoatingsTech Conference, which will be held March 20-22, 2017 at the Westin Cleveland Downtown in Cleveland, Ohio, will include dedicated regulatory and sustainability presentations on the conference's third day. These will be of great interest to the industry's compliance and regulatory professionals, in addition to informing formulators and the research and development audience.

This biennial conference features a multi-track forum, industry awards, and presentation opportunities for both industry professionals, academics and students, and has specifically been designed to advance the theme of "Meeting the Sustainability Challenges of Today and Tomorrow."

The regulatory and sustainability focus will include a featured presentation on March 22 by Heather Farr from California's South Coast Air Quality Management District, addressing recent amendments to the district's Rule 1113, Architectural and Industrial Maintenance (AIM); volatile organic compound (VOC) Test Method 313; and the district's future rulemaking plans.

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Aug 26, 2016

Small Business Advocacy Review Panel Issues Report on OSHA’s Proposed PSM Changes

(PAINT.ORG) On Aug. 1, the Small Business Advocacy Review Panel (SBAR) issued its report on the U.S. Occupational Safety & Health Administration's proposed changes to the Process Safety Management (PSM) standard. OSHA convened the panel on May 26, in accordance with the Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA), and five conference calls were held in late June, with panel members consisting of OSHA, the Small Business Administration, and White House Office of Management and Budget, participating along with Small Entity Representatives (SERs). Two ACA member companies had SERs participating on the SBAR panel.

The panel's report addressed its findings on issues related to small entity impacts and significant alternatives that accomplish the agency's objectives while minimizing the impact on small entities, and offered recommendations for the agency on its analysis and on possible approaches to regulatory action that may minimize impacts on small entities. Notably, the report cited considerable burdens the revised PSM would add to small businesses without commensurate safety and security benefits.

The SBAR report advised OSHA to limit its changes to only those that are necessary, and some companies questioned whether the PSM standard was the best approach to controlling risk. "Instead, something short of a full PSM program would be adequate to address the risks, particularly risks that arose primarily from the storage of materials," the report stated. The SBAR panel report also suggested that requirement to analyze safer technology and alternatives should be replaced by "performance-based" standards.

The report also stated that some of the chemical substances OSHA is considering adding to the PSM's Appendix A — the list of 137 highly hazardous substances that trigger PSM coverage — may not warrant justification based on their level of hazard, and that a risk-based approach to a chemical inventory should be pursued.

The PSM standard amendments are part of an effort under President Obama's Executive Order 13650, Improving Chemical Facility Safety and Security, which was charged with identifying issues to modernize the PSM standard to prevent major chemical accidents following the 2013 West, Texas explosion related to ammonium nitrate. The PSM standard is a comprehensive management program for highly hazardous chemicals issued in 1992 in response to a number of incidents that occurred involving catastrophic chemical releases, and is intended to reduce employee exposure to highly hazardous substances in the workplace. The standard covers the manufacturing of explosives and processes involving threshold quantities of flammable liquids and flammable gasses (10,000 pounds), as well as 137 listed highly hazardous chemicals. The modernization topics OSHA is considering stem from industry best practices, inspection history, stakeholder comments received in response to OSHA's 2013 Request for Information and lessons learned from accidents involving highly hazardous chemicals. A number of these topics overlap with the Environmental Protection Agency's (EPA's) Risk Management Plan (RMP) proposed rule, including third party compliance audits, root cause analysis requirements, and safer alternatives analyses. These are issues of major concern to many industries because of the potential high costs, added administrative burden, and lack of commensurate benefits in safety. ACA provided comments to EPA in response to these issues in the RMP proposed rule.

EPA recently completed a similar SBAR panel regarding proposed changes to the RMP regulations — regulations that closely track the PSM Standard. OSHA and EPA are obligated to commence SBAR panels if they are considering regulations that can potentially have a significant impact on a substantial number of small entities. The proposed changes to both PSM and RMP have been widely considered to be potentially significant and costly for chemical facilities, with little correlation to addressing significant risks of harm or improving chemical safety and security.

EPA Seeks Comments on Draft Aquatic Life Ambient Estuarine/Marine Water Quality Criteria for Copper

(PAINT.ORG) The U.S. Environmental Protection Agency (EPA), in a July 29-published Federal Register notice, asked for comments on its Draft Aquatic Life Ambient Estuarine/Marine Water Quality Criteria for Copper—2016. The draft includes EPA's Biotic Ligand Model test method for copper toxicity to marine life.

The draft BLM could benefit boaters and marinas faced with strict regulation of copper-based anti-fouling paint, especially in California, where regulators have set strict limits on dissolved copper in Marina del Rey and other basins, leading to restrictions on the use of copper-based paint.

If approved, BLM would provide a cost-effective scientific tool to determine copper toxicity, and could persuade environmental regulators to decline to impose unneeded mitigation measures.

EPA will accept comments submitted through Sept. 27. In order to allow EPA to finalize the proposal quickly, ACA is currently evaluating the proposal and working with allied industry partners to determine whether to file comments.

EPA's proposal recommends that states incorporate into their water quality criteria the agency's recently-developed saltwater biotic ligand model (BLM) and the latest scientific information for estuarine/marine aquatic organisms. According to the notice, "the updated recommended criteria will be particularly beneficial in the adoption of water quality standards for the protection of aquatic life in and around coastal harbors and marinas, where antifouling paints and coatings on vessels and marine structures represent one of the most commonly identified sources of copper to the estuarine/marine environment."

Notably, California's Marina del Rey copper loading exceeds the current Clean Water Act thresholds, and the California water authorities are considering drastic mitigation measures, including the reduction of the use of copper-based antifouling coatings, changes in under water hull cleaning practices, and possible dredging. ACA's Antifouling Coatings Committee last year hosted a multi-stakeholder workshop in California's Marina del Rey on its copper total maximum daily load (TMDL), including industry, L.A. Regional Water Quality Board (LARWQCB), California State Lands Commission, California Department of Pesticide Regulations, U.S. Navy, and environmental services contractors. ACA was also instrumental in securing passage of California Assembly Bill 425, which directs the California Department of Pesticide Regulation (DPR) to develop mitigation measures regarding copper-based antifouling coatings to protect aquatic environments, and was only signed into law on Oct. 5, 2013. ACA maintains that LARWQCB's suggested TMDL ignores the intended purpose of the law, and bypasses the scientific evaluation by DPR. ACA strongly believes that the mitigation strategies required from Bill 425 should be given time to take effect, and that the water agency is acting without the complete scientific picture.

California AB 425, Antifouling Paint Registration and Mitigation, requires that DPR establish a leach rate for copper-based antifouling paint used on recreational vessels and make recommendations for appropriate mitigation measures that may be implemented to address the protection of aquatic environments from the effects of exposure to that paint. The direction to DPR will ensure that the DPR registration for low-leach-rate, copper-based antifouling paint is completed by a date certain, and provide DPR the flexibility to consider all available mechanisms to achieve mitigation.

An EPA Fact Sheet on the Water Quality Criteria for Copper report is available here.