The Nickel Report

As Washington, DC readies itself for the new incoming Trump Administration, speculation has already begun regarding what this means for chemical policies, particularly at the US Environmental Protection Agency (EPA). Implementation of the 2016 Lautenberg Amendments to the Toxic Substances Control Act (TSCA) has not necessarily been a forward trajectory. Between the Obama, Trump, and Biden administrations, it has been more like watching a ping pong match for the regulated community. TSCA policy has been set, reset, and then returned to the original set point. We are likely to see this ping pong continue, though perhaps with an added touch of whack-a-mole. Below we discuss what we may see in some priority areas with the new Trump EPA.

It is important to note that EPA is working quickly to finalize and publish final rules in the Federal Register before President Biden’s term ends on January 20, 2025. We will update this blog post as additional final rules are published.

TSCA Section 6 Risk Management Rules

While the Biden EPA was able to propose risk management rules for seven of the ten chemicals for which risk evaluations were completed by January 2021, only five of these risk management rules (asbestos part 1, methylene chloride, trichloroethylene, perchloroethylene and carbon tetrachloride) have been finalized. The fate of these final rulemakings is unclear. Both asbestos part 1 and methylene chloride have been challenged and are in the hands of the court, with opening briefs filed. As for the trichloroethylene final rule published in the Federal Register on December 17, 2024, and the perchloroethylene and carbon tetrachloride rules published on December 18, 2024, it is too soon to know if they will be challenged, but history tends to repeat itself. While we do not know what path the Trump EPA would take, based on what we have seen with prior administration changes, it is possible that the Trump Department of Justice (DOJ), which represents EPA in court, would not want to continue to defend these rules in their current form.

Consistent with past transitions, President Trump likely will release an Executive Order on January 20, 2025, directing agencies to take a hard look at, and potentially pause, regulations and guidance documents developed by the Biden Administration. It would not be surprising to see the Trump EPA pause the implementation timelines for the three recently released final rules (trichloroethylene, perchloroethylene and carbon tetrachloride), which notably could be done before the prohibitions on the use of these chemicals becomes effective. This would allow the Trump administration an opportunity to evaluate whether the Biden EPA’s regulatory approach in developing and issuing the final rules is consistent with the policies and goals of the new Trump administration.

TSCA Section 6 Risk Evaluations

Since 2021, although scoping documents were completed by August 2020 by the Trump EPA for 20 chemicals which were prioritized to be evaluated under TSCA, the Biden EPA has only finalized two risk evaluations (for Tris (2-chloroethyl) phosphate (TCEP)), and one supplemental risk evaluation (for 1,4-dioxane) that are part of the first 20 chemicals.[1] However, on November 22, 2024, a district court entered a consent decree in which EPA has agreed to release two additional final risk evaluations (formaldehyde and 1,2-dichloroethane) by December 31, 2024. In addition, EPA has agreed to release six draft risk evaluations, including a draft evaluation for 1,3-butadiene, by no later than December 31, 2024, and one additional draft risk evaluation by March 31, 2025. EPA also committed to finalizing seven risk evaluations, including 1,3-butadiene by December 31, 2025, and to finalizing an additional ten risk evaluations by December 31, 2026. In total, this court-imposed agreement would have EPA complete all the risk evaluations for the 20 chemicals by December 31, 2026, a timeframe that is far longer than the three-year review period provided by the 2016 Lautenberg Amendments to TSCA.

EPA has manufacturer-requested risk evaluations in its queue as well. In a second consent decree also entered on November 22, 2024, EPA agreed to finalize the risk evaluation for Di-isodecyl phthalate-(1,2-benzenedicarboxylic acid 1,2-diisodecyl ester) (DIDP) by December 31, 2024, and also for Di-isononyl phthalate-(1,2-benzenedicarboxylic acid, 1,2-diisononyl ester) (DINP) by January 15, 2025. EPA’s timelines for two other risk evaluations (Octamethylcyclotetra-siloxane (D4) and Octahydro-tetramethyl-naphthalenyl-ethanone Chemical Category (OTNE)) were not part of this consent decree and remain unclear.

The Trump EPA will need to decide whether to let the finalized risk evaluations stand, or whether to reopen and revise them, and same with the corresponding framework rule for conducting risk evaluations, as the Biden EPA did. In June 2021, the Biden EPA announced significant policy changes to the risk evaluation process and began implementing these changes by revising the risk determinations for already completed risk evaluations. These revisions, and revisions to the framework rule for risk evaluations, likely took resources away from the EPA’s ability to complete risk evaluations and corresponding risk management rules in a timely manner. The Trump EPA will also need to decide whether the timelines agreed to in the consent decrees discussed above are consistent with new Administration priorities, and EPA could consider asking the plaintiffs to agree to modifications to the timelines and priorities. It is not atypical for a new administration to reconsider agreements made by previous leadership.

TSCA New Chemicals Program

Greater than 90% of the new chemical submissions at EPA have been under EPA review for longer than the statutory 90-day review period. Despite EPA’s initiatives to improve efficiency, EPA has been unable to make significant progress in shortening its timeliness. Agency delays directly impact the innovation pipeline.  For example, manufacturers of new chemicals do not have the certainty they need to invest in new chemical technologies. On December 18, 2024, EPA released a final rule to update its procedures for reviewing new chemicals. This rule will become effective January 17, 2025 and may become a target for reevaluation by the new EPA. Many stakeholder comments on the proposed rule indicate EPA did not make changes that will go far enough to improving efficiencies in the program. Considering the importance of new chemicals to President Trump’s priority to make the United States a manufacturing superpower, it would not surprising if the Trump EPA seeks to make changes to the rule that it believes would go far further to make actual improvements in the new chemicals program. 

PFAS Policies

The Biden EPA has advanced many important and precedent-setting regulations impacting the reporting, use, disposal, and clean-up of PFAS in the environment. For example, in April 2024, EPA established near-zero drinking water standards for certain PFAS under the Safe Drinking Water Act (SDWA). And in May 2024, EPA designated PFOA and PFOS as “hazardous substances” under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). Both rules are being litigated, and opening briefs have been filed. The Trump DOJ will need to determine whether to continue defending these rules in their current final forms. EPA also proposed, in February 2024, to list certain PFAS as “hazardous constituents” under the Resource Conservation and Recovery Act (RCRA). This proposed has not been finalized, and the Trump EPA will need to determine its position as to appropriate next steps, which could include finalizing the rule or withdrawing the proposal and taking no further action.  

The Biden EPA also increased the reporting requirements for PFAS via, a final rule, specifically for “any person” who has manufactured, including imported, PFAS substances for commercial purposes anytime between January 1, 2011 and December 31, 2022. This reporting rule does not contain any exclusions for impurities or byproducts, or for PFAS that are present in trace amounts. EPA delayed the start of the reporting period for this rule from November 12, 2024, to a new start date of May 8, 2025. The deadline for reports is now January 11, 2026 for most reporters and July 11, 2026 for small businesses that are reporting on imported articles that may contain PFAS. To note, these dates could be further modified by the Trump EPA.

The Trump EPA will also be the decisionmaker regarding whether EPA’s recently proposed expansion of PFAS listings on the Toxic Release Inventory should be finalized and what that final rule should look like. The October 2024 proposed rule sought to list all PFAS as “chemicals of special concern,” leading to more rigorous reporting requirements for manufacturers and processors of PFAS chemicals.

Other Chemical Related Priorities

In addition to the priorities discussed above, there are many other chemicals topics, including PFAS, that the Trump EPA could reevaluate. These policy areas include, but are not limited to, the use of non-animal alternatives in chemicals testing, how to implement responses made by the Biden EPA to Section 21 petitions, whether to move forward with the Biden EPA’s plans for a tiered testing regulation for chemicals, and whether the chemicals EPA has prioritized for future risk evaluation and risk management rules are the “correct” priorities.

The Department of Government Efficiency (DOGE)

While new EPA leadership will be responsible for determining EPA’s priorities, it is also important to consider how the new DOGE could impact EPA actions, including actions on chemicals. This new “department,” which will be stood up outside of the government and led by Vivek Ramaswamy and Elon Musk, will be tasked with providing recommendations to OMB. Using advanced technologies, DOGE’s  recommendations will focus on rescinding regulations that go beyond statutory authority; seeking administrative reductions, particularly in the number of federal employees; and, delivering cost savings to taxpayers.  

This is where the whack-a-mole comes in: EPA’s regulatory agenda does not provide a roadmap to predict what DOGE may find. Nor can we forecast how the recommendations from DOGE may modify EPA priorities, budgets, and staffing. For businesses and regulated entities that are seeking certainty and clarity, this may prove to be a frustrating period of the exact opposite.  

The chemicals and PFAS teams at Hunton Andrews Kurth are well equipped to help businesses and regulated entities navigate this changing landscape. Our team includes experts who have served as career and political officials throughout EPA, as well as other seasoned professionals who have helped clients navigate federal transitions and other periods of uncertainty. 

[1] EPA also completed a risk evaluation for Asbestos Part 2 on November 27, 2024.