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TSCA New Chemicals Program Continues to Suffer from Delays

EPA’s review of premanufacture notices (PMNs) for new chemical substances under the Toxic Substances Control Act (TSCA) has continued to suffer from significant delays. These delays in the PMN review process have been exacerbated by the federal government shutdown beginning in late December 2018 as the backlog has grown. EPA issuance of significant new use rules (SNUR) for new chemicals has also been delayed. 

Manufacturers and importers of new chemicals should continue to anticipate delays in the PMN review process and plan for additional time before the manufacture or import of a chemical substance can commence. Manufacturers and importers should also consider the prospect of negotiating a TSCA section 5(e) order that imposes controls or restrictions on the use of the new chemical and/or requires testing.

Growing Pains After Enactment of the LCSA

Upon enactment of the Frank A. Lautenberg Chemical Safety for the 21st Century Act (LCSA) on June 22, 2019, EPA had to revamp its PMN review process to reflect changes to the new chemical review framework. As part of this process, EPA also restarted the 90-day clock for 331 PMNs that were pending at the time of enactment of the LCSA. Within the first year after enactment, the backlog exceeded 600 “new chemical” applications according to EPA. Former EPA Administrator Scott Pruitt committed to eliminating the backlog of new chemical reviews that were stuck in EPA’s PMN review processes when he was confirmed.

On August 7, 2017, EPA announced that the new chemical backlog had been eliminated. EPA reported that it had only 382 open new chemical cases (which likely included PMNs, microbial commercial activity notices (MCANs), significant new use notices (SNUNs), and exemption applications). According to EPA, that caseload had returned to the baseline and was in line with a typical workload for the TSCA New Chemicals Program. EPA also highlighted its efforts to continuously improve EPA’s TSCA New Chemicals Program by redeploying full-time staff to work on new chemicals, initiating streamlined work processes around new chemicals, and institutionalizing a voluntary pre-PMN submission process so that submitters understand what information is most useful to EPA and what they can expect from EPA during the review process.

Despite EPA’s announcement in 2017 and efforts to improve the PMN review process, the PMN backlog has ballooned again, and EPA’s shutdown beginning in December 2018 compounded this already growing problem. 

The Effects of the Federal Government Shutdown

The recent federal government shutdown that began on December 29, 2018 resulted in another setback for EPA and the TSCA New Chemicals Program. During the shutdown, EPA’s New Chemicals Review Program, which includes the PMN review process, ground to a complete halt. EPA did not fully resume its work on the PMN program until January 31, 2019, 33 days after the shutdown began. 

As a result of the shutdown, EPA issued an extension to the review periods for all PMNs, MCANs, SNUNs, and exemption applications that were pending as of December 29, 2018. 84 Fed. Reg. 2851 (Feb. 8, 2019). EPA extended the review period for these applications by 33 days – the equivalent time period from the date of the shutdown until EPA fully resumed operations of the TSCA New Chemicals Program. EPA issues this extension under TSCA section 5(c), which allows the Agency to extend the PMN review process by up to 90 days for good cause. 

In addition to freezing review of all pending new chemical applications, the shutdown postponed the review of all incoming new chemical applications submitted during the shutdown. EPA did not receive notifications or process any submissions during the shutdown, and EPA did not begin its review of TSCA section 5 notices submitted during the shutdown until the TSCA New Chemicals Program resumed operations. In other words, the 90-day review clock for PMNs did not start until January 31, 2019 for all new chemical applications. 

Current Backlog of PMN Reviews

According to EPA, there are currently 542 cases under review as of February 19, 2018. These include PMNs, MCANs, SNUNs, and other exemption applications. The current backlog is approaching the previous total of over 600 cases that EPA reported shortly after enactment in 2017. The current EPA statistics show over a 40% increase in EPA’s caseload since EPA’s announcement in 2017 that the backlog had been eliminated. See Statistics for the New Chemicals Review Program under TSCA

EPA’s review of PMNs in the past year highlights the significant backlog and delays experienced by PMN submitters. Manufacturers and imports have submitted 324 PMNs to EPA since February 1, 2018 (this number does not include PMN submissions deemed invalid or withdrawn). Of these, EPA has only completed its review and made final determinations regarding 30 chemical substances, or less than 10% of the total number. In these cases, EPA has determined that 23 chemical substances are not likely to present an unreasonable risk, and has issued a 5(e) order for the other 7 chemical substances based on insufficient information or its finding that the chemical substance may present an unreasonable risk. The remaining 294 PMNs submitted in the past year are still under review. See EPA PMNs and SNUNs Table.

Most PMNs Subject to Some Restriction

Since enactment of the LCSA on June 22, 2016, EPA has issued 564 total determinations allowing manufacturers to commence manufacture of new chemical substances. Since June 22, 2016, EPA has:

  • Issued a section 5(e) order for 439 chemical substances.
  • Issued a section 5(f) order for 2 chemical substances.
  • Made a “not likely to present an unreasonable risk” determination for 123 chemical substances are. 

This is based on a review of EPA's PMNs and SNUNs Table (current as of February 14, 2019).

A total of 78% of the final determinations have resulted in a section 5(e) or a section 5(f) order. About 22% have resulted in a “not likely to present” determination. This demonstrates that EPA has imposed controls or restrictions on chemical substances for a majority of the PMNs it has reviewed since enactment of the LCSA. PMN submitters should consider the likelihood of having to negotiate and comply with a section 5(e) order, and the associated delays with doing so. 

Delays for Significant New Use Rules

EPA’s issuance of SNURs following a section 5(e) order has also been delayed. TSCA section 5(f)(4) requires EPA to initiate a SNUR rulemaking within 90 days of issuing a section 5(e) order or, by that time, explain why it is not doing so. EPA has not published any explanations.

EPA is not meeting that 90-day deadline (as indicated by publication of a direct final SNUR or a proposed SNUR), but the Agency is closing the gap. EPA has initiated SNUR rulemaking for 378 PMN chemicals with section 5(e) or section 5(f) orders effective after the date of enactment. This represents approximately 85% of the total number of section 5(e) and section 5(f) orders issued since enactment. The issuance of a SNUR has typically lagged between seven to 12 months after the effective dates of the respective 5(e) orders, with some SNURs being issued as much as two years later. 

EPA is clearly struggling to meet its deadline to issue SNURs within 90 days, but manufacturers and processors of new chemical substances should monitor the situation as EPA seeks to catch up and promulgate SNURs for outstanding chemical substances subject to section 5(e) orders.

Recommendations

Manufacturers and importers of new chemicals should anticipate and plan for significant delays for PMN reviews as EPA continues to work through the backlog of PMNs. Manufacturers and importers should also consider the prospect of a TSCA section 5(e) order that imposes controls or restrictions on the use of the new chemical or requires testing, and should be prepared to negotiate this 5(e) order. PMN submitters should consider options to increase the likelihood of a favorable (or at least faster) determination. 

© 2020 Beveridge & Diamond PC National Law Review, Volume IX, Number 66

TRENDING LEGAL ANALYSIS


About this Author

Ryan J. Carra Environmental Attorney Beveridge & Diamond Washington, DC
Principal

A Ph.D. in Organic Chemistry compliments Ryan's law practice.

Ryan uses his extensive technical background to counsel clients in the chemicals, products, and energy sectors regarding environmental regulatory issues. Ryan’s experience includes:

  • Advising clients on Toxic Substances Control Act (TSCA) matters, including implementation of the 2016 reform legislation.
  • Advising product manufacturers, retailers, and other clients on extended producer responsibility, waste classification, chemical hazard classification, chemical notification...
202-789-6059
Mark N. Duvall Chemicals Regulation Attorney Beveridge & Diamond Washington, DC
Principal

Mark has over two decades of experience working in-house at large chemical companies. 

His focus is product regulation at the federal, state, and international levels across a wide range of programs, and occupational safety and health.

He leads the firm’s Chemicals group. His experience under the Toxic Substances Control Act (TSCA) includes enforcement actions, counseling, rulemaking, advocacy, and legislative actions. Since the enactment of TSCA amendments in 2016, he has been heavily involved in advocacy, compliance activity, and litigation arising from EPA's implementation of these amendments. He also works with foreign counterparts to TSCA, including REACH and CEPA.

He is also a leader of the firm’s Occupational Safety and Health practice. He has extensive experience with OSHA and state OSHA inspections, enforcement litigation, compliance counseling, advocacy, and rulemaking. He has counseled clients on the EPA risk management program requirements under Section 112(r) of the Clean Air Act and state worker protection programs, and on inspections by the Chemical Safety and Health Investigation Board.

He has extensive experience with the Federal Insecticide, Fungicide, and Rodenticide Act, particularly with respect to regulation of antimicrobials, and with the Biocidal Products Directive in Europe.

He heads the firm’s FDA practice, having worked on FDA regulation of food and food additives, dietary supplements, drugs, medical devices, and cosmetics, and European counterparts. He is knowledgeable about human testing requirements, having served as the Chair of an institutional review board for several years.

He has counseled clients on the regulation of consumer products by the Consumer Product Safety Commission and the Federal Trade Commission. He has reviewed hundreds of green marketing claims and counseled on federal, state, and international regulation of such claims.

He has worked on green chemistry issues at the federal and state levels, as well as a variety of voluntary programs that affect products. He has helped clients with the Emergency Planning and Community Right-to-Know Act, the Controlled Substances Act, the Chemical Weapons Convention, and other chemicals-related requirements.

He has advised clients and written and lectured on the regulation of the products of nanotechnology by FDA and by EPA under FIFRA and TSCA, and on related product stewardship issues.

Service Areas & Industries

  • Chemicals Regulation
  • Chemicals
  • Food, Beverage
  • Occupational Safety and Health
  • Pesticides
  • Industrial Hemp & Cannabis
202-789-6090