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Importers and Manufacturers of Targeted chemicals, Take Note: Deadline Approaching for Exempt Manufacturers Under the TSCA Fees Rule

In March, EPA issued a No Action Assurance letter identifying three classes of manufacturers that are now exempt from the TSCA Fees Rule. However, any of those now-exempt manufacturers that have been identified on EPA’s Preliminary List or that have already self-identified to EPA have until May 27, 2020 to certify to EPA that they are now exempt in order to avoid being included on the Final List and subject to fees. 

The 2016 amendments to TSCA authorized EPA to conduct risk assessments of high priority chemicals and to collect fees from manufacturers (which includes importers) of those chemicals to defray some of their costs. EPA identified the first set of 20 chemicals1. The TSCA Fees Rule authorizes EPA to collect payment of $1.35M for each of the chemicals being assessed from all manufacturers of these chemicals on a pro-rata basis. Using data from CDR and TRI reports, EPA published a Preliminary List of Manufacturers subject to the rule and required all other manufacturers of these chemicals to self-report to EPA.

This rule was met with significant challenge as the definition of manufacturer was overly broad and included importers of articles containing these chemicals, as well as manufacturers that produce these chemicals only as a byproduct or impurity. EPA acknowledged that the rule imposed unintended significant and burdensome efforts on stakeholders in these three categories and issued a No Action Assurance (NAA) memorandum on March 24, 2020. In the NAA, EPA indicated it would amend the regulations to exclude these categories of manufacturers, and while that is pending, EPA will not pursue enforcement against these manufacturers.

With the NAA, manufacturers that fall within the following categories are no longer required to self-identity and will not be subject to the cost sharing:

  • import the chemical substance in an “article”

  • produce the chemical substance as a “byproduct”

  • produce or import the chemical substance as an “impurity”2

Any exempt manufacturers identified previously by EPA on the Preliminary List or that have already self-identified are also not subject to cost sharing, however, they must take action to be removed from the list. As noted by EPA on its website FAQs, “Entities who have been identified on a Preliminary List, but fall into one of the three categories in the planned regulatory change should certify in CDX before the close of the comment period on May 27, 2020, that they fall into one of those categories, and therefore should not be listed on the Final List and not subject to the risk evaluation fee.” 

Similarly, entities that fall into one of the three categories that have already self-identified should likewise certify in CDX that they fall into one of these categories. These actions are necessary to avoid being placed on the Final List and face responsibility for a share of the risk evaluation fees.

The NAA and FAQs can be found at https://www.epa.gov/tsca-fees/information-plan-reduce-tsca-fees-burden-and-no-action-assurance

The Preliminary Lists for each of the 20 chemicals can be found at https://www.regulations.gov/docketBrowser?rpp=25&so=DESC&sb=commentDueDate&po=0&dct=SR&D=EPA-HQ-OPPT-2019-0677


The 20 chemicals include formaldehyde, seven chlorinated solvents, six phthalates, four fire retardants, 1,3 butadiene and a fragrance additive.

As those terms are defined by TSCA rules.

© 2020 Foley & Lardner LLPNational Law Review, Volume X, Number 133

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