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EPA Releases Lautenberg First Year Implementation Plan

On June 29, 2016, the U.S. Environmental Protection Agency released its First Year Implementation Plan outlining the agency’s schedule for implementing The Frank R. Lautenberg Chemical Safety for the 21st Century Act (Lautenberg), which amended the federal Toxic Substances Control Act and which President Obama signed into law on June 22, 2016.

Key aspects of Lautenberg went into effect immediately, including the new chemical standard of review requiring EPA to make an affirmative, risk-based determination on the safety of new chemicals. This review standard excludes considerations of costs and other non-risk factors, and includes consideration of effects on vulnerable populations. According to EPA, for those companies having premanufacturing notices pending, Lautenberg resets the 90-day review period (though EPA has stated that it will “make every effort” to complete its review of such PMNs and make the necessary determinations within the time remaining under the original review period for those PMNs).

But many of Lautenberg’s key provisions will require EPA rulemaking, which the First Year Implementation Plan addresses. For “Framework Actions,” i.e., processes to guide the longer term TSCA program, EPA identifies deadlines which are necessarily aggressive given the agency’s statutory mandate. For example, EPA intends to publish a list of ten Work Plan chemicals by mid-December 2016. These chemicals will be the subject of risk evaluations. U.S. Senator Kirsten Gillibrand (D-New York) has urged EPA to place perfluorooctanoic acid (PFOA) on the list.

EPA also intends to publish a proposed rule by mid-December 2016 establishing EPA’s process and criteria for identifying high priority chemicals and low priority chemicals. High priority chemicals will undergo risk evaluations, the outcomes of which may trigger risk management actions. In contrast to the new chemical review standard, the standard for post-risk evaluation management actions does include consideration of costs and availability of alternatives.

EPA intends to seek input from stakeholders and the public as part of its implementation of Lautenberg, with briefings, webinars, public meetings and formal comment periods. As aggressive as EPA’s timelines are, affected stakeholders should be equally zealous in ensuring that their voices are heard.

Ms. Grimaldi maintains a diverse environmental law practice focusing on chemical and product regulation and litigation defense. Her practice areas include Proposition 65, California's Safer Consumer Products Regulations, California's Rigid Plastic Packaging Container Act and the federal Toxic Substances Control Act. Ms. Grimaldi graduated from the University of California Hastings College of the Law magna cum laude and holds a Bachelor of Science Degree in Bacteriology from University of California, Davis. Prior to attending law school, she worked as a research assistant in laboratories at the University of California, San Francisco Cancer Research Institute and at the University of California, San Francisco School of Medicine.