Lynn L. Bergeson and Charles M. Auer Discuss Changes to EPA’s New Chemicals Program

On November 30, 2016, the Bloomberg BNA Daily Environmental Report included comments by Charles M. Auer, Senior Regulatory and Policy Advisor with Bergeson & Campbell, P.C. (B&C^®), and Lynn L. Bergeson, Managing Partner of B&C, in the article “Groans Heard About Pace EPA’s New Chemical Reviews.”

The EPA appears to be making changes to the new chemicals program beyond what the law mandated, Charles Auer, former director of the EPA’s Office of Pollution Prevention and Toxics, told Bloomberg BNA Nov. 21.

He described the Lautenberg Act’s revisions to the program as modest.

Yet decisions made since the law went into effect in June suggest the EPA is making substantial changes to that program, said Auer, a senior regulatory and policy adviser for Bergeson & Campbell, P.C.

The EPA reviews about 1,000 new chemical notices annually, according to information the agency posted in August.

Historically, 10 to 13 percent of the new chemicals the EPA would review annually were managed through TSCA Section 5(e) orders, significant new use regulations or both, said Auer, who worked in the EPA’s chemicals office for 32 years. Another approximately 7 percent got withdrawn, Auer said.

Based on questions and discussions chemical manufacturers have had with the agency since the Lautenberg Act took effect, however, it appears the agency may regulate about 50 percent of the new chemicals presented for review, he said.

Some increased regulation of new chemicals was expected to result from the Lautenberg Act, but “considerably less” than that, Auer said. 

Traditionally, EPA’s new chemicals program sought to encourage innovation by approving new compounds that made small incremental changes to chemical structure over those they’d replace, Auer said.

The new chemical might be made with less energy, be less toxic or have some other benefit, he said.

Requiring too much testing of a new chemical prior to its manufacture or requiring the new molecule to meet what appears to be a “no risk” standard could harm innovation, said Lynn Bergeson, managing partner of Bergeson & Campbell, P.C.