While rulemakings under the Administrative Procedure Act typically take several years from proposal to enactment, that can vary significantly. While some rules run a fairly standard course, others languish for years with no action nor any apparent reason for inaction. EPA’s recent revival of a proposed rule that is now, were it a person, old enough to drink should serve as a reminder for the public that mere inaction on a rulemaking is no guarantee that the rule is off the table.
On August 8, 2022, the United States Environmental Protection Agency resurrected a long-dormant effort to add diisononyl phthalate (DINP) to the list of toxic chemicals subject to the reporting requirements under the Emergency Planning and Community Right-to-Know Act (EPCRA) and the Pollution Prevention Act (PPA) first proposed in September 2000. The potential listing is based on an updated hazard assessment indicating adverse health effects associated with DINP; EPA initially published and invited comment on a hazard assessment in 2005 but took no further action until this August.
DINP refers to a category of phthalates which are, essentially, chemical additives to plastic resins used to increase their workability, flexibility, or extensibility. And so DINPs are widely used as plasticizers and are particularly common in the production of polyvinyl chloride or PVC; DINP-treated plastics are also used in electrical insulation, vinyl flooring, and various coated fabrics. About five years ago the Consumer Product Safety Commission issued the Phthalates Rule which sharply limited the use of phthalates in consumer goods which might be placed in one’s mouth. But phthalates—a large class of chemical compounds—remain important to the plastics industry for their supremely useful effects as an additive notwithstanding concerns over their long-term health effects.
In the proposed rule, EPA proposes listing DINPs based on its “review of the available carcinogenicity data” which leads it to “conclude that DINP can reasonably be anticipated to cause cancer in humans” and “can reasonably be anticipated to cause serious or irreversible chronic human health effects at moderately low to low doses including developmental effects, kidney toxicity, and liver toxicity.” In this proposed rule, EPA is relying on a long history of scientific studies indicating a connection between DINP and adverse health events.
If enacted, the Rule would require facilities in certain industry sectors that manufacture or process or use more than a set threshold of DINP-category chemicals per year to report information to the Toxics Release Inventory under EPCRA. The data would include quantities of DINP-category chemicals that were released into the environment or otherwise managed as waste. The Toxics Release Inventory is a database created by EPCRA to document the usage and release of particularly hazardous chemicals. These reporting guidelines are mandatory and violations can carry significant penalties, including per-day penalties of up tens of thousands of dollars under 42 U.S.C. § 11045.
EPA has invited comment on its updated hazard assessment and the potential listing on rulemaking docket EPA-HQ-TRI-2022-0262. The prior rulemaking, on an older docket, EPA-HQ-TRI-2005-0004, invited robust pushback from the plastics and chemicals industry that EPA did not have a sufficient scientific basis to list DINP. EPA now has an updated scientific assessment detailing the potential hazard, and recent rulemaking by the Consumer Product Safety Commission indicates a renewed interest in addressing the alleged carcinogenic properties of DINP exposure. Commentators currently have until October 7, 2022 to submit a comment.