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Chemical Regulations – An Indication of Future Environmental Regulations?

Date: May 25, 2021

 

The Biden administration is moving quickly to place its own mark on environmental regulations. We have seen this on the Paris Climate Accord, funding new water projects, and moving to eliminate the use of PFAS. But the actions don’t stop there.
 
Just as California is making it more difficult for suppliers and others to easily use the short-form Proposition 65 warning, the Biden administration is taking another look at exemptions provided to motor vehicle suppliers under TSCA. These two cases are particularly concerning since changes to the California Prop 65 short-form does not provide any greater protection to the consumer and the EPA TSCA exemptions were narrowly drawn.
 
What does this all mean for suppliers?

 

KEY TAKEAWAYS

  • The environmental community is making its mark on U.S. policy including the regulation of chemicals.

  • Both coasts are active, with California moving to limit the short-form warning for Prop 65 and EPA proposing to eliminate previously permitted exemptions.

  • Chemical regulatory advocacy has never been more important!

 

WHAT I AM WATCHING

  • Will EPA be willing to accept the industry’s short-term need to continue the use of certain chemicals while appropriate substitutes are identified?

  • Will California continue to dig in on form versus substance and not provide industry’s use of the currently permitted information formats?

  • And, will Congress step in?

 

PROPOSITION 65

As most of us know, California’s Proposition 65 requires that consumers be provided with a “clear and reasonable warning” of exposures to certain chemicals determined by California’s Office of Environmental Health Hazard Assessment (OEHHA) to cause cancer, birth defects, or other reproductive harm. Manufacturers, distributors, and retailers who fail to provide such a warning are at risk for enforcement lawsuits from California’s Attorney General or the public at large, which place the burden of proof on the defendant business to demonstrate compliance.  

In January 2021, OEHHA released a proposal to amend the Proposition 65 regulation by placing limitations on when Proposition 65 short-form warnings can be used and also updating short-form warning requirements.  

Key changes to the short-form warnings include:

  • Requiring that short-form warnings now name at least one Proposition 65 listed chemical;

  • Restricting the use of short-form warnings to products with no more than 5 square inches of label space and where the full package cannot accommodate the full Proposition 65 warning;

  • Eliminating the ability of Internet and catalog postings to rely on short-form warnings;

  • One-year transition period.

In comments and testimony before OEHHA, MEMA strongly urged California to withdraw the Prop 65 short-form warnings amendments or, at a minimum, provide a five-year transition period.
 

TSCA 

 
The Toxic Substances Control Act of 1976 (TSCA) provided EPA with authority to require reporting, record-keeping, and testing requirements, and restrictions relating to chemical substances and/or mixtures. On June 22, 2016, President Obama signed the Frank R. Lautenberg Chemical Safety for the 21st Century Act, which updates TSCA.
 
Within that update were several legislative provisions of great importance to the auto industry. Congress limited EPA’s authority to regulate substances used in the manufacture of replacement parts and in articles. TSCA significantly limits the agency’s authority to regulate replacement parts and can regulate replacement parts only if EPA finds that such replacement parts contribute significantly to the risk identified in a risk evaluation. TSCA language equally limits EPA’s authority to regulate articles only to the extent necessary to address the identified risk in the risk evaluation.
 
Prior to President Trump leaving the White House, the EPA released a final rule that prohibited the use of decaBDE and PIP (3:1) effective May 2021 and March 2021 respectively. The rule, however, provided separate, narrow exemptions for the use in motor vehicles and motor vehicle parts.
 
On March 8, the Biden administration issued a “No Action Assurance” to certain entities subject to the TSCA rule prohibiting processing and distribution of PIP (3:1) containing articles. The agency also provided a 60-day comment period asking for additional information as the agency evaluates whether to limit the exemptions provided in the previous rule. MEMA filed comments on May 17th opposing the retraction of the exemptions.
 

WHAT'S NEXT?

 
MEMA is awaiting the final decisions from both California and EPA. But these two cases are only a sign of what’s to come on the regulatory front. President Biden has now placed individuals in key positions throughout the administration. This summer and throughout the rest of the year, we will watch the President and his agency’s flex their cumulative regulatory muscle. And California is now offering a sign of issues of greatest importance to environmentalists and perhaps an indication of further action by the Biden administration.
 
While we all wish to be good stewards of our environment, we must articulate concerns and challenges for the use of certain chemicals and substances. Your trade association is well-positioned to do this with you.
 
You must work with your trade association, MEMA, in providing us with critical information on these and other issues. Please contact Laurie Holmes (lhomes@mema.org) to become involved.

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