Bergeson & Campbell, P.C. (B&C®) is a Washington, D.C. law firm providing chemical and chemical product stakeholders unparalleled experience, judgment, and excellence in matters relating to TSCA, and other global chemical management programs.

By Christopher R. Bryant

The U.S. Department of Transportation’s (DOT) Pipeline and Hazardous Materials Safety Administration (PHMSA) on June 6, 2018, announced two public meetings related to the harmonization of transportation and hazard communication standards with international standards.  83 Fed. Reg. 26338.  The first meeting -- led by PHMSA -- will solicit public input on current proposals and items for inclusion in the agenda of the 53rd session of the United Nations Sub-Committee of Experts on the Transport of Dangerous Goods (UNSCOE TDG). The second meeting will be spearheaded by the U.S. Occupational Safety and Health Administration (OSHA) and will focus on preparation for the 35th session of the United Nations (UN) Sub-Committee of Experts on the Globally Harmonized System of Classification and Labelling of Chemicals (UNSCEGHS).  Both meetings will take place on Tuesday, June 12, 2018, at DOT Headquarters, West Building, Oklahoma City Conference Room, 1200 New Jersey Avenue, SE, Washington, D.C. 20590-0001.  The PHMSA meeting is scheduled for 9:00 a.m. to 12:00 p.m. (EDT) and the OSHA meeting is scheduled for 1:00 p.m. to 4:00 p.m. (EDT). Registration for the meetings is available online.  DOT and OSHA will also provide conference call-in and Skype meeting capabilities. 

The primary purpose of PHMSA’s meeting is to prepare for the 53rd session of the UNSCOE TDG.  UNSCOE will consider proposals for the 21st Revised Edition of the United Nations Recommendations on the Transport of Dangerous Goods (Model Regulations), which may be implemented into relevant domestic, regional, and international regulations from January 1, 2021.  Topics on the agenda for the UNSCOE TDG meeting include:

  • Explosives and related matters;
  • Listing, classification, and packing;
  • Electric storage systems;
  • Transport of gases;
  • Global harmonization of regulations on the Transport of Dangerous Goods with the Model Regulations;
  • Guiding principles for the Model Regulations;
  • Cooperation with the International Atomic Energy Agency;
  • New proposals for amendments to the Model Regulations;
  • Issues relating to the Globally Harmonized System of Classification and Labelling of Chemicals (GHS); and
  • Miscellaneous issues.

OSHA’s meeting will focus on preparation for the 35th session of the UNSCEGHS.  It will provide interested groups and individuals with an update on GHS-related issues, as well as solicit input on the development of U.S. positions on proposals submitted to the UNSCEGHS.


 

The attorneys, scientists, policy experts, and regulatory advisors of Bergeson & Campbell, P.C. (B&C®), The Acta Group (Acta®), and B&C® Consortia Management, L.L.C. (BCCM) endeavor year-round to keep you informed on key developments as they happen, and prepared for looming changes and deadlines, to help you maintain compliance and competitive advantage as you market your products throughout the world. As the new year begins, we offer you this look back at the top stories of 2016 (as measured by clicks, reads, and shares by readers of our blogs and e-mails), a year that was full of surprises and dramatic shifts -- many of which will play out well into the new year.

 

June 22, 2016

TSCA Reform:  An Analysis of Key Provisions and Fundamental Shifts in the Amended TSCA

 

September 22, 2016

Proposition 65:  OEHHA Adopts Revisions to Its Proposition 65 Warning Regulations

 

August 8, 2016

TSCA Reform: Proposed Changes to SNUR Procedures Would, Perhaps Inadvertently, Result in Disclosure of CBI to Third Parties/Possible Competitors

 

June 29, 2016

TSCA Reform:  EPA Publishes First Year Implementation Plan

 

April 8, 2015

K-REACH:  List of Priority Existing Substances Submitted for Consultation

 

December 20, 2016

TSCA:  EPA Amends Procedures for TSCA Section 6 Rulemaking

 

January 6, 2016

EPA Releases Preliminary Risk Assessment for Neonicotinoid Insecticide Imidacloprid

 

January 8, 2016

EPA Sued Over Guidance Classifying Seeds Coated with Neonicotinoid Insecticides as Treated Articles Exempt from Registration under FIFRA

 

February 10, 2016

Bayer Announces That It Will Not Submit Voluntary Cancellation Requests for Flubendiamide

 

October 19, 2016

Brazil Delays Promulgation of Final Industrial Chemicals Regulation

 

October 6, 2015

EPA Announces Revisions to Its Worker Protection Standard

 

September 28, 2016

EPA Announces Regulatory Determinations on MCANs and PMNs

 

January 13, 2016

EPA Denies SDA Nomenclature Petition, But Options for Adding Biobased Sources Remain Open

 

December 1, 2016

Brexit -- An Overview of Transformative Developments and Their Potential Impact on European Chemical Laws

 

 

Top Articles Authored by B&C:

 

Kathleen M. Roberts, Richard E. Engler, Ph.D., Charles M. Auer, Lynn L. Bergeson, "An Analysis of Section 8 of the New Toxic Substances Control Act," BNA Daily Environment Report, August 9, 2016.

 

Lynn L. Bergeson, Charles M. Auer, "An Analysis of TSCA Reform Provisions Pertinent to Industrial Biotechnology Stakeholders," Industrial Biotechnology, Volume 12, Issue 4, August 2016.

 

Charles M. Auer, "Old TSCA, New TSCA, and Chemical Testing," BNA Daily Environment Report, August 16, 2016.

 

L. Bergeson, B. Auerbach, L. Campbell, T. Backstrom, S. Dolan, J. Vergnes, R. Engler, J. Bultena, K. Baron, C. Auer, "The DNA of the U.S. Regulatory System: Are We Getting It Right for Synthetic Biology?," Woodrow Wilson International Center for Scholars Synthetic Biology Project Report, October 15, 2015.

 

 

Coming first quarter 2017 from ABA Books:

 

Lynn L. Bergeson, Charles M. Auer, New TSCA: A Guide to the Lautenberg Chemical Safety Act and Its Implementation, American Bar Association (2017).


 

By Lynn L. Bergeson, Charlie M. Auer, and Margaret R. Graham

On October 21, 2016, the U.S. Environmental Protection Agency (EPA) reopened the comment period on a proposed rule revising regulations governing significant new uses (SNU) of chemical substances under the Toxic Substances Control Act (TSCA), per a request from a commenter.  EPA states in its Federal Register notice that this request was “reasonable and is therefore reopening the comment period … [for] all interested persons.”  The proposed rule would amend the TSCA SNU regulations to align them with revisions to the Occupational Safety and Health Administration’s (OSHA) Hazard Communications Standard (HCS), as occasioned by OSHA's March 2012 final rule modifying the HCS to conform to the United Nations' (U.N.) Globally Harmonized System of Classification and Labelling of Chemicals (GHS), changes to OSHA’s 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.  The proposed rule would also amend regulations for SNU rules (SNUR) previously proposed and issued and make a “minor” change to reporting requirements for premanufacture notices (PMN) and other TSCA Section 5 notices. 

Commentary

The brief notice reopening the comment period does little to reinforce the magnitude and consequences of these proposed changes.  Our memorandum TSCA:  Proposed Revisions to Significant New Use Rules Reflect Current Occupational Safety and Health Standards provides a detailed account of the significant and complex issues that these changes raise, briefly reiterated here:

  1. The challenges in aligning labeling, as well as legal and regulatory ambiguities.  EPA has devoted considerable effort to clarifying the application of HCS/GHS requirements to Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) but unresolved issues still remain.  The implementation of these revisions will most likely present similar challenges.
  2. EPA’s use of the hierarchy of controls (HOC) approach in the significant new use provisions, even though Congress did not include this approach in new TSCA.  The wisdom of the inclusion of the HOC approach, even though we recognize and appreciate the importance of HOC as an element in a system to manage or eliminate occupational risks, is questionable and inconsistent.
  3. Whether or not EPA's review considered the possibility that new TSCA may materially impact the content of the proposal.  There are signs, such as EPA’s inclusion of old TSCA citations, that point to them not having done this review, and there are no reassurances from EPA that new TSCA’s potential impacts were considered.

Our memorandum TSCA Reform: Proposed Changes to SNUR Procedures Would, Perhaps Inadvertently, Result in Disclosure of CBI to Third Parties/Possible Competitors also brings to light another important legal issue, concerning interesting anomalies that appear in the proposal's discussion of bona fide requests and the disclosure of information potentially considered confidential.  EPA proposes to modify the procedures for determining if a specific substance or chemical use is subject to a SNUR when the substance, production volume, or use is claimed as confidential business information (CBI).  The source of EPA’s authority to disclose CBI in the ways described in the proposed rule is unclear, as neither old nor new TSCA specifies them, such as the statutory basis and rationale for informing a bona fide intent notice (BFN) submitter of confidential use or production volume conditions.  Also, EPA does not justify why disclosure to the BFN submitter is necessary.  The current proposed SNUR provides for neither equal disclosure nor equal confidentiality as a result of BFN submission.


 

By Lynn L. Bergeson and Margaret R. Graham

The U.S. Environmental Protection Agency (EPA) proposed on July 28, 2016, revisions to the regulations governing significant new uses of chemical substances under the Toxic Substances Control Act (TSCA) with revisions to the Occupational Safety and Health Administration’s (OSHA) Hazard Communications Standard (HCS) occasioned by OSHA’s March 2012 final rule modifying the HCS to conform to the United Nations’ (U.N.) Globally Harmonized System of Classification and Labelling of Chemicals (GHS), changes to OSHA’s 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 states that it is also proposing changes to regulations based on issues that it identified, as well as issues raised by public commenters, for significant new use rules (SNUR) previously proposed and issued under these regulations.  Additionally, EPA claims to propose a “minor” change to reporting requirements for premanufacture notices (PMN) and other TSCA Section 5 notices.  EPA states that it expects the changes “to have minimal impacts on the costs and burdens of complying, while updating the significant new use reporting requirements to assist in addressing any potential effects to human health and the environment.”  Comments are due September 26, 2016.

The revisions include:

  • Proposed Changes to 40 C.F.R. Section 721.63, Protection in the Workplace;
  • Proposed Changes to 40 C.F.R. Section 721.72, Hazard Communication Program;
  • Clarification of the Use of 40 C.F.R. Section 721.80, Industrial Commercial and Consumer Activities;
  • Proposed Changes to 40 C.F.R. Section 721.91, Computation of Estimated Surface Water Concentrations:  Instructions;
  • Proposed Changes to 40 C.F.R. Section 721.11, Determining Whether a Chemical Substance or a Specific Use Is Subject to This Part When the Chemical Substance Identity or Significant New Use Is Confidential;
  • Proposed Changes for Submission of SDS(s) with PMNs, SNUNs, Low Volume Exemptions (LVE), Low Release and Exposure Exemptions (LoREX), and Test Marketing Exemption (TME) Applications; and
  • Fixing Typographical Errors and Other Non-Substantive Changes.

Commentary

Although the notice downplays them, the proposal raises significant and complex issues.  There may well be good reasons for several of the proposed changes.  The minimal discussion provided in the notice and the lack of adequate public debate having occurred prior to its issuance raise troubling questions about the legal basis for, scope of, and complexity of the proposed changes, some of which may apply retroactively. The confusion the proposal can be expected to cause could have been avoided had adequate discussion preceded its publication, or at the least EPA could have raised these issues in the proposed rule’s preamble to focus stakeholders’ attention appropriately.

More information is available in our memorandum TSCA: Proposed Revisions to Significant New Use Rules Reflect Current Occupational Safety and Health Standards.