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Sidley Environmental and Energy Brief US EPA Announces New Regulations for Manufactured Products Under the Toxic Substances Control Act

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In an announcement that portends substantial regulatory changes, the head of the chemicals office of the United States Environmental Protection Agency (EPA) announced a policy change to further regulate chemicals in buildings. manufactured goods or finished goods. The change would mean that importers, manufacturers and processors will need to know the chemicals in manufactured or finished products and assess whether the EPA is restricting those chemicals.

Deputy Administrator Michal Freedhoff, who took charge of the Office of Chemical Safety and Pollution Prevention at the EPA earlier this year, announced during an address to the Product Stewardship Society on September 28, 2021 , that the EPA already considered chemicals in manufactured or finished products to be subject to the Toxic Substances Control Act (TSCA). This is a change of policy years in which the EPA granted exemptions for manufactured or finished goods, regulated as “items” in TSCA regulations. Recognized exemptions for items include those for import certification and chemical data reporting (CDR). Freedhoff pointed out that the EPA has always had this authority under the TSCA and noted that the European Union’s requirements already apply in the same way to articles.

EPA’s recent regulatory actions on Persistent, Bioaccumulative, and Toxic Chemicals (PBTs) and Per- and Polyfluoroalkyl Substances (PFAS) show how the agency can enforce this new perspective on article regulation under the TSCA.

  • First, in January 2021, the EPA issued regulations for five PBT chemicals, codified as 40 CFR Part 751, Subpart E, which restricted the presence of some of these chemicals in products or articles, with certain restrictions, from 2021. For one of these chemicals, phenol, isopropyl phosphate (3: 1 ), called PIP (3: 1), Extended EPA the March 2022 compliance deadline due to industry concerns about a perceived lack of advance notice weighed against the heavy burden of compliance.
  • Second, in June 2021, the EPA released a proposed rule which would require the declaration of importers of articles containing PFAS. The rule would require manufacturers and importers of articles containing any of the PFAS chemicals listed each year since January 1, 2011 to report uses, production volumes, disposals and hazards of PFAS.

Based on this announcement and recent developments, manufacturers and importers should pay attention to regulatory developments at EPA and comment on relevant proposals.

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