By Lynn L. Bergeson and Carla N. Hutton
On February 8, 2022, the U.S. Environmental Protection Agency (EPA) announced the availability of and solicited public comment on an Information Collection Request (ICR) that EPA is planning to submit to the Office of Management and Budget (OMB): “Notification of Substantial Risk of Injury to Health and the Environment under the Toxic Substances Control Act (TSCA),” identified by EPA ICR No. 0794.17 and OMB Control No. 2070-0046. 87 Fed. Reg. 7173. The ICR represents the renewal of an existing ICR that is currently approved through October 31, 2022. Before submitting the ICR to OMB for review and approval under the Paperwork Reduction Act (PRA), EPA is soliciting comments on specific aspects of the information collection activities and burden estimates. Comments are due April 11, 2022.
Under TSCA Section 8(e), any person who manufactures (including imports), processes, or distributes in commerce a chemical substance or mixture and who obtains information that reasonably supports the conclusion that such substance or mixture presents a substantial risk of injury to health or the environment is required to inform EPA immediately of such information unless they have actual knowledge that EPA has been adequately informed of such information. There is also an option for those who wish to submit voluntarily “For Your Information” (FYI) notices. More information on TSCA Section 8(e) requirements is available in our TSCA frequently asked questions (FAQ).
EPA estimates that the total estimated number of potential respondents is 51 and that the total estimated average number of responses for each respondent is 343. There is a decrease of 3,847 hours from the last approval (from 21,412 to 17,565 hours). According to EPA, this reflects an overall decrease in the number of Section 8(e) and FYI submissions, which decreased from 408 to 343 Section 8(e) submissions and 13 to six FYI submissions, respectively. EPA has also increased the total annual costs due to an increase in the hourly wages and a change in the methodology to calculate loaded wages (wages plus fringe benefits and overhead).
EPA notes that in addition, OMB has requested that it move toward using the 18-question format for ICR Supporting Statements used by other federal agencies and departments that is based on the submission instructions established by OMB in 1995, replacing the alternate format developed by EPA and OMB prior to 1995. EPA states that it does not expect this change in format to result in substantive changes to the information collection activities or related estimated burden and costs.
Bergeson & Campbell, P.C. (B&C®) is pleased to offer the recording, slides, and written Question and Answer (Q&A) document from our “PFAS Reporting Rules -- What Every Company Needs to Know” webinar, focusing on the U.S. Environmental Protection Agency’s (EPA) proposed reporting rules for per- and polyfluoroalkyl substances (PFAS), presented by B&C Managing Partner Lynn L. Bergeson and Director of Chemistry Richard E. Engler, Ph.D.
Do you wonder if the PFAS reporting rules extend to domestically-produced articles? Or if businesses that incorporate PFAS into their products are required to notify the end users? Do you know whether you need to report your Low Volume Exemption (LVE) substance? We encourage you to view the webinar and read the additional materials to learn answers to these and other questions related to EPA’s recent PFAS actions.
We also encourage you to consider the following issues discussed in the webinar and to submit comments to EPA regarding how these will affect your operations:
- Identifying chemicals subject to reporting (i.e., specific PFAS and whether to include imported articles);
- Considerations for economic analysis;
- Submission period;
- Potential duplicative reporting concerns;
- Scope of “existing environmental and health information” collected;
- Additional data elements or information collected;
- EPA’s use and publication of non-confidential business information (CBI);
- Availability of joint submissions; and
- Small manufacturer considerations (i.e., regulatory and non-regulatory assistance and outreach).
Comments on EPA’s proposed PFAS rules are due on September 27, 2021.
By Lynn L. Bergeson and Carla N. Hutton
On March 2, 2021, the U.S. Environmental Protection Agency (EPA) announced that it reached a settlement agreement with Brenntag Pacific, Inc. for violations of the Toxic Substances Control Act (TSCA). According to EPA, Brenntag Pacific, Inc. has corrected the violations and will pay a $128,265 fine. EPA states that it discovered the violations following inspections at Brenntag Pacific, Inc. facilities in Fairbanks, Alaska, and in Santa Fe Springs, California. EPA inspectors “found the company failed to submit accurate and timely reports and notification associated with the import and export of nine chemicals.” According to EPA, between 2012 and 2015, Brenntag Pacific, Inc. failed to report properly the import production volumes and uses of five chemicals as required by the 2016 Chemical Data Reporting (CDR) Rule. In addition, the company failed to produce first-time export notices for four chemicals between 2016 and 2017. EPA notes that under TSCA, chemical importers and manufacturers are required to submit CDR information to EPA every four years. EPA uses these data to track the chemicals being imported into the United States and to assess the potential human health and environmental effects of these chemicals. In addition, EPA makes the non-confidential business information it receives available to the public.
By Lynn L. Bergeson and Carla N. Hutton
On May 20, 2020, the U.S. Environmental Protection Agency (EPA) issued a press release announcing a final agreement with Swix Sport USA (Swix) resolving Toxic Substances Control Act (TSCA) violations associated with the importation of noncompliant ski wax products containing per- and polyfluoroalkyl substances (PFAS). According to the press release, Swix agrees to pay a fine and develop a $1 million educational program to raise awareness in ski communities about PFAS chemicals in ski waxes. EPA states that Swix violated the TSCA Premanufacturing Notice requirements and Import Certification requirements when it imported ski wax products containing six different PFAS chemicals on at least 83 occasions that were not included on the TSCA Inventory or otherwise exempt for commercial purposes. Once the chemicals were identified, Swix immediately ceased importation of the products containing the PFAS substances and quarantined products in its control in the United States.
Under the terms of the settlement, Swix has agreed to spend approximately $1 million to develop and implement an outreach and training program referred to as a Responsible Waxing Project (RWP) and pay a $375,625 civil penalty. The RWP is aimed at: (1) educating the ski racing community about PFAS chemicals in racing waxes and their impact on the environment; and (2) promoting the use of wax alternatives with lower environmental impact, including but not limited to racing waxes that are PFAS-free. Another objective of the RWP is to educate and motivate the ski racing community to phase out (and ultimately eliminate) the use of PFAS-containing waxes in ski racing beginning with the 2020 ski season.
EPA notes that the RWP has several elements, including an education and training component for ski wax technicians on the proper disposal of racing wax shavings and the use of appropriate personal protective equipment (PPE) during the waxing process. Other RWP elements include:
- PFAS ski wax education program, including two on-site presentations at a major ski event that attracts more than 10,000 participants;
- Training for wax technicians on the proper use of PPE, proper ventilation, and proper disposal of wax shavings;
- Program for ski wax coaches available online and used at on-site presentations at a minimum of ten events designed for coach certifications;
- Additional outreach to college racing teams and clubs that educates high school and college level skiers about the RWP content;
- A dedicated Swix project manager who oversees the project to completion;
- Website development for all videos created as part of the settlement for technicians, coaches, and teams; and
- Distribution of PFAS alternative wax information materials at a minimum of 50 ski sites.
EPA’s Environmental Appeals Board approved the consent agreement and final order on May 13, 2020.
By Lynn L. Bergeson, Christopher R. Bryant, and Margaret R. Graham
On January 27, 2017, the U.S. Customs and Border Protection (CBP) issued in the Federal Register a notice of delay of an effective date of a final rule issued on December 27, 2016 (81 Fed. Reg. 94980). The final rule announced amendments to CBP regulations regarding the requirement to file a Toxic Substances Control Act (TSCA) certification when importing into the customs territory of the United States chemicals in bulk form or as part of mixtures and articles containing a chemical or mixture. 82 Fed. Reg. 8590. Specifically, the final rule amends CBP’s regulations under 19 C.F.R. Parts 12 and 127 to establish an electronic option for importers to file the required U.S. Environmental Protection Agency (EPA) TSCA certifications, to clarify and add certain definitions, and to eliminate the paper-based blanket certification process.
The effective date of the final rule was initially set at January 26, 2017, but is now delayed until March 21, 2017, in accordance with the Presidential directive entitled “Regulatory Freeze Pending Review” issued January 20, 2017, directing heads of executive departments and agencies temporarily to postpone the effective date for 60 days from the date of the memorandum, of all regulations that had been published in the Federal Register, but had not taken effect. In the notice, CBP states that this additional time is not unwelcome, as it will allow affected entities more time to “become familiar with the increased flexibilities and new processes of the final regulations.”