July 14, 2020

Volume X, Number 196

July 14, 2020

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July 13, 2020

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EPA Relaxes TSCA Fee Self-Identification Requirement

On March 24, 2020, Susan Parker Bodine, Assistant Administrator of the U.S. Environmental Protection Agency’s (EPA) Office of Enforcement and Compliance Assurance (OECA), issued a No Action Assurance memorandum related to the Toxic Substances Control Act (TSCA) (15 U.S.C. § 2601 et seq.) section 6 risk evaluation fee self-identification requirement. The memorandum explains that that EPA will exercise its enforcement discretion for three specified categories of manufacturers and importers of 20 designated “high-priority” substances as a bridge to planned revisions to the Agency’s 2018 TSCA fee rule. The no action assurance will remain in place until September 30, 2021 or the effective date of a final rule amending the fees regulations, whichever occurs first.

The three categories are: 

  1. importers of “articles” containing one of the 20 high priority substances;

  2. domestic producers of one of the 20 substances as a “byproduct”; and

  3. domestic producers or importers of one of the 20 substances as an “impurity” 

These manufacturers and importers will not need to self-identify (as otherwise required by May 27, 2020) and will not be subject to otherwise applicable risk evaluation fees. Significantly, EPA’s assurance applies to activities that meet the definitions of these terms appearing at 40 C.F.R. § 720.3 and, as such, provides a broader exemption for byproducts than exist under the current TSCA section 5 exemptions appearing at 40 C.F.R. §§ 720.30(g) and 720.30(h)(2). Notably absent from the No Action Assurance, however, is an exemption for manufacturers of one of the 20 high-priority substances as a “non-isolated intermediate.”  

EPA’s action was not unexpected. During recent public EPA fee rule presentations, the Agency indicated that numerous entities in the regulated community had made the Agency intensely aware of the substantial adverse impacts of the absence of meaningful exemptions from the self-identification and fee sharing requirements for these 20 chemicals, and that the Agency understood and appreciated these adverse impacts. 

While EPA's action is laudable and does address many of the issues raised by industry, issues remain. For example, it is likely that many manufacturers and importers will have to self-identify based on de minimis manufacture/import quantities and/or de minimis concentrations of substances in imported mixtures. EPA also has yet to specify the required diligence standard – viz., whether a prospective reporter must base its report based on information that it “knows” or can “reasonably ascertain,” whether the information must simply be “readily obtainable,” or whether some other standard or type of diligence is required. Questions related to the scope of “small business entity,” consortia, and procedural issues also remain unaddressed.

© 2020 Keller and Heckman LLPNational Law Review, Volume X, Number 86


About this Author

 Thomas C. Berger, Keller Heckman, Environmental Protection lawyer, Product Liability Management Attorney

Tom Berger joined Keller and Heckman in 1993. Mr. Berger is a partner in Keller and Heckman's Washington DC office and heads Keller and Heckman's Indianapolis satellite office.

Mr. Berger has extensive experience in representing foreign and domestic companies, large and small, in a broad range of areas, including counseling, advocacy, and rulemaking in environmental law, occupational safety and health law, contracts, EPA enforcement proceedings, and chemical and product liability management. Mr. Berger assists clients in bringing new products to...

Gregory A. Clark, Keller Heckman, EPA Contractor Lawyer, Environmental matters Attorney

Gregory Clark joined Keller and Heckman in 2010. He practices in the area of environmental law.

While in law school, Mr. Clark served as an articles editor for the Virginia Journal of Law and Technology. Prior to law school, Mr. Clark worked as an EPA contractor, primarily for the Water Security Division in the Office of Groundwater and Drinking Water. In this arena, Mr. Clark worked on validation of molecular biology and microbiology methods and on emergency preparedness. He led development of what is now EPA's Water Laboratory Alliance Response Plan, which was developed to aid laboratories in responding collaboratively on a regional scale to natural, intentional, and unintentional water contamination incidents. 

Trent Doyle Environmental Compliance Attorney Keller Heckman Law Firm

Trent M. Doyle advises clients on all types of environmental matters, including compliance with U.S. and international chemical control laws, transportation of dangerous goods regulations, hazardous materials regulations, and community right-to-know laws. He also has special expertise in environmental permitting.

Mr. Doyle counsels clients on a wide spectrum of environmental and transportation matters, including those pertaining to chemical control, facility permitting (e.g., Clean Air Act, Clean Water Act), hazardous materials shipping...

Herbert Estreicher Ph.D., Keller Heckman, International Regulation Lawyer, Environmental law Attorney

Herbert Estreicher, Ph.D. joined Keller and Heckman in 2003. He has a broad practice in international environmental regulatory law.

Dr. Estreicher has an interdisciplinary approach combining law and science. He represents leading manufacturers of chemicals, pesticides, insect repellents, food additives, and consumer products before Federal and State regulatory agencies.

Dr. Estreicher provides advice on product liability risk control and assists clients with crisis management for embattled products, including...