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Long Overdue: A TSCA Implementation Advisory Committee

In 2016, 40 years since its original passage in 1976, Congress dramatically amended the Toxic Substances Control Act (TSCA) through passage of the Frank R. Lautenberg Chemical Safety for the 21st Century Act. These amendments set in motion an unprecedented and sustained scientific scrutiny of chemicals in commerce by the U.S. Environmental Protection Agency’s (EPA) Office of Pollution Prevention and Toxics (OPPT), within the Office of Chemical Safety and Pollution Prevention (OCSPP). Under the 2016 TSCA amendments, for example, OPPT must prioritize chemicals for a multi-year intensive risk evaluation process to determine whether chemicals present unreasonable risk of injury to health or the environment, including an unreasonable risk to potentially exposed or susceptible subpopulations. If unreasonable risk is identified, OPPT must then promulgate regulations to eliminate that risk, which may include severely restricting the use of the chemical.

Although TSCA was amended over six years ago, the policies and regulations that govern the complex risk evaluation processes and procedures have not been fully developed. Moreover, significant implementation challenges continue to hamper the new chemicals program, leading to unprecedented delays in reviewing new chemical submissions. To date, EPA has requested public input on TSCA regulatory policy matters through notice and comment under the Administrative Procedure Act and through ad hoc, sporadic public stakeholder meetings. There is a third way to obtain stakeholder input that has yet to be exploited - an advisory committee on TSCA implementation.  

A TSCA focused advisory committee could be structured to mirror the long-standing Pesticide Program Dialogue Committee (PPDC), initially established pursuant to the Federal Advisory Committee Act (FACA) in July of 1995. Advisory committees established under FACA serve an important role in shaping programs and policies of federal agencies, including EPA.  

For nearly four decades, the PPDC has provided OPP with regulatory policy advice on proposed modifications to policies and procedures, among other delineated duties. Members of the PPDC represent a wide swath of private and public interest stakeholders, including chemical pesticide trade associations, farm groups, environmental and public interest groups, and federal agencies, among others.  

The 2016 TSCA amendments did call for the creation of a FACA committee, the Science Advisory Committee on Chemical (SACC), which EPA established in December of 2016. The SACC, however, is focused appropriately on the scientific and technical aspects of TSCA implementation. What is still needed is an advisory committee on the many TSCA policy issues still taking shape both within the new and existing chemicals program. Stakeholders need a venue in which they can voice concerns and provide timely, constructive recommendations and feedback. A FACA advisory committee on TSCA implementation is long overdue.

© 2022 Keller and Heckman LLPNational Law Review, Volume XII, Number 201
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About this Author

David B. Fischer Counsel Keller and Heckman
Counsel

David Fischer advises clients on environmental, policy, and health and safety matters, with a concentration on the Toxic Substances Control Act (TSCA) and the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA). In addition, he has extensive experience with numerous other statutes including the Clean Air Act (CAA), Clean Water Act (CWA), Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), Safe Drinking Water Act (SDWA), and the Emergency Planning and Community Right-to-Know Act (EPCRA), Food Quality Protection Act (FQPA). 

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