In 2016, Congress enacted major reforms to the Toxic Substances Control Act (TSCA). These improvements included items such as: (1) a mandatory requirement for the U.S. Environmental Protection Agency to evaluate existing chemicals with clear and enforceable deadlines; (2) risk-based chemical assessments; (3) increased public transparency for chemical information; and (4) a consistent source of funding for the EPA to carry out its responsibilities under this statute.

Although the EPA has made progress toward these goals on demanding deadlines, it is still struggling to complete all of its required improvements on time. The agency has successfully promulgated a series of “framework rules” establishing the process for how the agency regulates chemicals; it has finalized guidelines detailing how companies may keep certain information confidential; and it continues to update the TSCA inventory.

All this headway aside, the EPA has announced that it will not meet the deadlines for three improvements: (1) amendments to the fee rule; (2) risk evaluations; and (3) scoping documents for future chemical evaluations. In the coming months, the EPA will push to finalize these updates. As a result, important developments in the TSCA program may take place this summer.

Fee rule

In 2018, the EPA finalized a rule creating a fee structure to raise approximately $20 million for TSCA programs from industry members. Under TCSA, the fee rule must be updated every three years, and the EPA has announced that it expects to propose amendments this summer.

The fees from this rule are intended to defray administrative costs associated with certain TSCA provisions, including chemical testing requirements, new chemical reviews and regulation, and existing chemical reviews and regulatory actions. The collected fees would also be used to offset the costs of processing and providing access to chemical substance information.

Environmental groups have argued that the initial rule set the fees too low, based on EPA complaints that it lacks the resources to complete some programs the fees are intended to fund. Alternatively, several industry groups contend that the fees are too high and as a result have asked for exemptions.

The amendments to the fee rule are worth watching because, depending on the rates, they could have a major impact on EPA’s administration of TSCA programs or industry groups’ participation in these programs.

Final risk evaluations

One of the 2016 TSCA amendments required the EPA to create a list of 10 chemicals that would receive new human health and environmental risk assessments. The initial deadline to finalize this list was Dec. 22, 2019; however, the EPA exercised its option to extend the deadline by six months to June 22, 2020. Even with this extension, the EPA still has a lot of work to do.

In November 2019, the 9th U.S. Circuit Court of Appeals ruled that the EPA must consider “legacy,” or outdated, chemical uses when considering the substance’s health and environmental risks. In its earlier drafts before this ruling, the EPA had not considered these legacy uses.

The 10 chemicals at issue are 1,4-dioxane, 1-bromopropane, asbestos, carbon tetrachloride, cyclic aliphatic bromide cluster, methylene chloride, N-methylpyrrolidone, pigment violet 29, tetrachloroethylene (aka perchloroethylene), and trichloroethylene.

These risk evaluations are important because they indicate how all other risk evaluations may proceed in the future. As a result, the EPA’s progress on this item is definitely worth watching.

Final scoping documents

Another of the 2016 amendments required that by 2019 the EPA must have at least 20 chemical risk evaluations—beyond the initial 10 described above—ongoing at any given time. The EPA used another six-month extension for this item and proposed scoping documents for the next 20 chemical evaluations. The final scoping documents for these evaluations are expected sometime this summer.

The proposals experienced delays when they met with resistance from both environmental and industry groups. Environmental groups have argued that the proposals violated TSCA by bypassing certain required elements, such as an opportunity for the public to comment on specific hazards.

These scoping documents are important and worth watching because if questions are raised about the validity of the scope, then issues may arise about the final risk evaluation.