TSCA and the Regulation of Renewable Chemicals
The Biobased and Renewable Products Advocacy Group (BRAG®) recognizes that the Toxic Substances Control Act (TSCA) is an old law that is being stretched to apply to emerging technologies. While the U.S. Environmental Protection Agency (EPA) remains committed to promoting cleaner technologies, it often is legally constrained to address product approval requests in ways that do not necessarily optimize the promise of the technology. When TSCA was passed in 1976, the manufacture of synthetic chemicals from petroleum feedstocks was very much the norm, and the nomenclature of chemical identification -- a critically important element under TSCA -- was premised largely on petroleum derivatives. Newer biobased chemicals are not, in many cases, listed on the TSCA Inventory and thus are subject to "new chemical" review and evaluation processes by EPA scientists. These reviews can and do result in EPA applying risk management conditions on the production and distribution in commerce of renewable chemicals, restrictions that may not apply to older petroleum chemistries even though they may be functionally identical. Ironically, the new chemical may offer a more benign environmental footprint but nonetheless be subject to stricter operating conditions. (For more about TSCA and renewable chemicals see our articles: "TSCA and the Regulation of Renewable Chemicals," Industrial Biotechnology, October 2012; "The Regulation of Renewable Chemicals under the Toxic Substance Control Act (TSCA)," Environmental Quality Management, Fall 2013; and "Promoting Renewable Chemicals," The Environmental Forum, January/February 2014.)
Accepting unfair or unreasonable regulatory restrictions or testing requirements on new biobased chemicals sets an unfortunate precedent within the industry. But individual biobased companies may not have the resources to advocate for change within the existing regulatory and legislative structure on their own. That is where BRAG comes in. Working together within BRAG allows the industry to achieve reasonable, equitable regulations now and in the future through:
- Direct engagement with EPA staff;
- Inclusion in petitions for appropriate exemptions;
- Education to assist members in navigating successfully the existing regulatory framework;
- Advocacy focused on embedding renewable technologies in the current TSCA modernization efforts; and
- Tailored monitoring and analysis of Congressional activity.
As the leader in TSCA compliance issues for the biobased chemical industry, BRAG will be engaged in:
- Partial reporting exemptions under the TSCA Chemical Data Reporting (CDR) rule for its members' biobased diesel products.
In January 2015, EPA approved BRAG's petition to exempt six biodiesel products and issued a direct final rule to immediately implement that change. During the short comment period for the direct final rule, a single party submitted an adverse comment, which nullified EPA's ability to proceed directly with the change. Instead, EPA will proceed with a proposed rulemaking to list the chemicals in the near future. BRAG will urge EPA to move as quickly as possible in the hopes EPA can complete the rulemaking process in time for the next reporting cycle, starting in June 2016.
- Addressing gaps in current nomenclature rules that do not cover complex biobased chemicals produced as equivalents to existing complex mixtures and oils.
Due to existing nomenclature rules, some complex biobased chemical products that are designed to be equivalent to existing chemical products may, in fact, be considered new chemicals, are subject to obtaining a new chemical name, and undergoing new chemical notification. As a further complication, the new chemical name of the biobased chemical can carry over into downstream products, which places a TSCA reporting burden on downstream customers. BRAG will lead industry efforts to identify and execute an effective solution to commercialization obstacle.
- Resolving questions on how the unique biobased feedstocks are regulated under TSCA and reducing associated industry reporting burdens.
Under existing EPA policy, if a material that is typically considered "waste" is used in the manufacture of a commercially available chemical, that "waste" is considered a chemical feedstock and could be subject to TSCA regulations. Given the ever-expanding growth of technology to utilize non-food feedstock, BRAG will identify areas needing further clarification and coordinate efforts within the industry to address potential gaps between existing policy and manufacturing reality.
- Development of key issues and principles that BRAG members wish to see reflected in TSCA reform legislation.
While there will be numerous chemical trade associations engaged in TSCA reform debate, none are laser-focused on biobased chemicals like BRAG. BRAG appreciates that it is critical that biobased chemical companies engage in the TSCA debate to ensure their unique sector is appropriately addressed in final legislative language.