INSIGHT: US on track to restrict VCM, ACN, aniline under TSCA

HOUSTON (ICIS)–The US is on track to use its main chemical safety program to impose restrictions or even bans on various uses of vinyl chloride monomer (VCM) and acrylonitrile (ACN) as well as aniline, the main feedstock used to make the polyurethane chemical methylene diphenyl diisocyanate (MDI).

• The Environmental Protection Agency (EPA) oversees the main chemical safety program of the US, known as the Toxic Substances Control Act (TSCA)
• The guidelines adopted by the EPA under the current administration indicate that it will impose restrictions once it completes the multi-year TSCA process
• The EPA indicated that it could target an additional 5 chemicals/year, including benzene, butadiene (BD), styrene and two xylene isomers

THE ROAD TO RESTRICTIONS
Back in mid-December, the EPA announced that it had started the 12-month prioritization process to determine whether VCM, ACN, aniline and two other chemicals should be designated as high priority substances.

Those two other chemicals are acetaldehyde and 4,4’-methylene bis(2-chloroaniline), a chemical known as MBOCA or MOCA.

The EPA had already said that it “expects these chemicals to be designated as high priority for risk evaluation during the prioritization process”.

If the EPA designates those chemicals as high priority substances, then it will start the risk evaluation phase, in which the regulator will determine whether the chemicals pose unreasonable risks.

This process is supposed to last three years with a six-month extension, although it is unclear whether the EPA will meet this deadline.

Under President Joe Biden, the EPA has taken a whole chemical approach to determine whether a substance poses an unreasonable risk.

Under such an approach, the EPA is expected to find that VCM, ACN, aniline and the other two chemicals pose unreasonable risks, said Lynn Bergeson, managing partner at Bergeson & Campbell, a law firm that specializes in TSCA.

If the EPA makes such a finding, then it will proceed with the risk management phase, in which it will propose ways to manage the unreasonable risks.

Those can include restrictions or bans on certain uses.

EPA TO CONSIDER PLASTIC WASTE, ENVIRONMENTAL JUSTICE DURING TSCA PROCESS
In its mid-December announcement, the EPA indicated that it is taking an expansive interpretation of TSCA by considering environmental justice and plastic waste.

• It said the prioritization process advances Biden’s “goal of environmental justice for all”
• The announcement took the unusual step of quoting the president of Beyond Plastics, an advocacy group that greeted the regulator’s decision as the first step towards banning VCM

Such an expansive approach increases the likelihood that the EPA will propose restrictions or bans during the risk management phase.

The concern is that the administration could harness the nation’s chemical safety regulations as a tool to restrict plastic production in the name of environmental justice and waste reduction.

All five of the chemicals selected for the prioritization process are used to make polymers.

TSCA SETS SIGHTS ON OTHER MAJOR CHEMICALS
Biden’s EPA plans to start prioritization on five chemicals each year, which could put more commodity chemicals on track for potential restrictions or bans.

The EPA did not say which chemicals could be next, but the 2014 TSCA Work Plan provides a list of candidates. The EPA selected VCM, ACN and aniline from that same work plan.

Other notable chemicals in the work plan include the following:

• Benzene
• Bisphenol A (BPA)
• Butadiene (BD)
• Ethylene dichloride (EDC)
• Ethylbenzene (EB)
• Formaldehyde
• Orthoxylene (OX)
• Paraxylene (PX)
• Phthalic anhydride (PA)
• Styrene

HOW RESTRICTIONS COULD WORK
A recent post by Bergeson & Campbell explains how the restrictions could work.

The EPA could propose workplace chemical protection programs (WCPP) that include existing chemical exposure limits (ECEL). These exposure limits could be several orders of magnitude stricter than current workplace regulations.

RAMIFICATIONS FOR CHEMICAL COMPANIES
For the chemical industry, those stricter limits could require costly plant upgrades, procedures and other measures.

Those additional costs would trickle down to the final prices for VCM, ACN and aniline. Companies would pass through those higher prices directly to their derivatives.

For aniline, that would be MDI, the main isocyanate used to make polyurethane.

For ACN, downstream products would include acrylonitrile butadiene styrene (ABS), acrylic fiber and polyacrylonitrile (PAN), the feedstock used to make carbon fiber.

For VCM, higher costs would pass through to polyvinyl chloride (PVC).

POLICY INSTABILITY
The EPA’s expansive interpretation of TSCA could lead to unstable policies, regardless of the merits of pursuing environmental justice and or reducing plastic waste.

If the EPA is sued over any TSCA restrictions, the court may find that the regulator exceeded the scope of the law. It could then strike down the restrictions.

Something similar happened in the last decade, when the court found that the EPA exceeded the scope of the Clean Air Act when it used an ozone statute as the basis to phase down the use of refrigerants and polyurethane blowing agents that contributed to climate change.

The court threw out the program, and US efforts to phase down the materials were delayed until Congress passed new legislation. In the meantime, states passed their own phasedown laws, leading to a patchwork of regulations.

NEW CHEM POLICIES EVERY FOUR YEARS
Bergeson, the managing partner of Bergeson & Campbell, expressed larger concerns about volatile policy-making at the EPA.

When Donald Trump succeeded Barack Obama as president in 2016, the EPA pursued a different approach to chemical safety. In 2021, the EPA changed tack under President Joe Biden. This year, the US presidency could change again with Trump potentially returning as president and causing another about-face in chemical safety policy making.

Such volatility makes it difficult for companies to make plans and anticipate future policies and regulations, she said.

When Congress passed TSCA reforms in 2016 under the Frank R Lautenberg Chemical Safety for the 21st Century Act, two of its intentions were to make the country’s chemical safety program more predictable and to diminish the number of state chemical initiatives that also posed commercial challenges.

Seven years later, chemical companies are facing the prospects of sharp swings in the US regulatory climate and unrelenting state chemical initiatives.

Insight by Al Greenwood

Thumbnail shows test tubes, which are often used in testing chemicals in toxicological studies. Image by Shutterstock.