Chemical manufacturers can’t blame the coronavirus if they miss regulatory deadlines or deadlines to comment on EPA plans that may ultimately limit the chemicals they can use, industry attorneys say.
Companies making and using chemicals have been stretched thin, addressing workforce, supply chain disruptions, and other Covid-19 challenges. The Environmental Protection Agency has recognized businesses could face logistical obstacles complying with some environmental regulations and offered leniency under such circumstances.
But “don’t count on enforcement leniency” for Toxic Substances Control Act (TSCA) regulations, said Thomas C. Berger, a partner focusing on chemicals and enforcement issues at Keller and Heckman LLP. Putting TSCA obligations on the back burner could result in fines and lost opportunities to make the case they’re safely using certain chemicals the EPA could regulate, attorneys said in recent interviews.
“The TSCA work has to continue because of the statutory deadlines despite Covid-19,” said Cynthia AM Stroman, an attorney at King & Spalding LLP who focuses on environmental, health, and safety issues.
Nor should companies expect the EPA to extend comment periods for nonregulatory, but important, deadlines that could influence a company’s future use of any of the 20 chemicals under review for health and safety risks, said Erik C. Baptist, who deals with chemical, pesticide, air emissions, and hazardous waste at Wiley LLP.
“The agency does not appear to be slowing down nor providing any additional time for comments or information to be provided,” Berger said.
Chemical manufacturers have a May 27 deadline to say whether they make or import any of 20 chemicals that the EPA must examine under TSCA to decide whether they pose too great a chance of injuring people or the environment.
The obligation to notify the EPA was known before Covid-19, so a company will find it difficult to argue that it missed the deadline due to the pandemic, Berger said.
The EPA underscored the deadline requirements during an April 16 webinar.
Chemicals specialist Martha Marrapese, a partner in Wiley LLP, asked whether the EPA would waive the May 27 deadline if a chemical manufacturer furloughed the employee who was authorized to submit the notification.
“At this point, we’re not considering it to be covered” as one of the Covid-19 regulatory exemptions, staff from the EPA’s Office of Enforcement and Compliance Assurance said.
Another regulatory deadline chemical manufacturers need to prepare for starts in about six weeks, Berger said. The Chemical Data Reporting (CDR) rule requires manufacturers to report their production volume and other information to the agency between June 1 and Nov. 30.
The EPA can fine manufacturing plants that fail to submit CDR-mandated information $40,576 calculated on a per chemical, per day basis for each facility that was supposed to report.
Baptist and Stroman said their clients have sought guidance on how to meet another pending deadline, EPA’s nonregulatory May 26 deadline to comment on a group of 13 chemicals that are under review. Makers or users of those chemicals have the opportunity until that date to weigh in on preliminary plans to analyze the risks that they pose to people or the environment.
The EPA released the 13 draft plans, called “scopes,” on April 6. They describe the uses of the chemicals the EPA plans to examine as well as health and environmental concerns and any highly exposed or vulnerable populations that the agency will consider or omit from its analysis.
On April 17, the agency released plans to evaluate seven more chemicals, bringing the total number of draft risk analysis plans the agency has released to 20. The deadline to comment on those will be announced in a future Federal Register notice.
The perspective of and information from companies that purchase chemicals to make goods such as cars, smart phones, and computers is particularly important, Baptist said. The agency ultimately could restrict a manufacturer’s use of a chemical, even though the chemical itself can continue to be produced for other applications, he said, expanding on that point in an April 15 alert.
The agency isn’t expected to offer a second public comment period until after it reaches its preliminary conclusions about the risks each chemical may pose, Baptist said. At that late stage, it may be hard to influence the agency’s final conclusions, individuals working for the regulatory and advocacy community have often said.
Busier Than Usual
Stroman said she’s busier with various TSCA activities than just a few months ago—but not because of the coronavirus.
What makes TSCA unique among environmental statutes right now is that the law mandates a challenging pace of regulatory and policy activity, she said.
Baptist described more than a dozen additional policy decisions or regulations the agency will be issuing in coming months.
Beginning in June, the agency is expected to start releasing the final 10 risk evaluation it will have completed for the first batch of chemicals that it examined under the amended chemicals law.
The agency must immediately prepare to regulate any situations in which it deemed a chemical posed an unreasonable risk, and companies will want to participate in that process, he said.
Companies or trade associations also may want to participate in court cases that are expected to arise as the agency issues those final risk evaluations, Baptist said.
The agency’s website lists all 30 chemicals the agency must examine under the 2016 TSCA amendments.