Two Proposed TSCA Rules Dramatically Updated

In the past two weeks, US EPA has proposed substantial updates to two Toxic Substances Control Act (TSCA) rules proposed in 2021.

On November 16, EPA proposed to increase the fees that chemical manufacturers, importers, and processors pay for certain activities under TSCA (among other changes).

On November 25, EPA posted notice of dramatically revised cost estimates for a proposed rule that would require reporting of PFAS chemical manufacturing and import data. 

TSCA User Fees Rule

In 2018, EPA established TSCA User Fees for chemical manufacturers and others to defray some of the agency's costs to evaluate and regulate chemicals under TSCA.

TSCA requires EPA to review and adjust (if necessary) these fees every three years. In January 2021, EPA proposed a rule to adjust the fees, add fee categories, and create exemptions for certain activities.

In a supplemental notice to the January 2021 proposal, EPA proposes to revise the rule in ways that would, among other revisions:

• Increase the fee amounts collected from chemical industry stakeholders,
• Narrow the proposed exemption for producers of a substance as a byproduct, and
• Extend fee obligations for TSCA Section 4 activities to cover more manufacturers.  

The supplemental notice of proposed rulemaking was published to the Federal Register on November 16, 2022. The notice includes details about the costs of implementing TSCA, EPA’s rationale for increasing the user fees, and a table that summarizes proposed fee adjustments (“Table 5”). TSCA user fees were adjusted for inflation, effective January 1, 2022.

EPA's proposed TSCA fee increases are as follows:

Fee category	Current fee	Proposed fee
Test orders	$11,650	$25,000
Test rule	$35,080	$50,000
Enforceable consent agreement	$27,110	$50,000
PMN (and others)	$19,020	$45,000
EPA-initiated risk evaluation	$2,560,000	$5,081,000

 

Fees for manufacturer-requested risk evaluations will increase significantly under the updated proposal as well, as shown on Table 5 in the November 16 notice (p. 68654).

EPA will accept comments on the revised proposal until January 17, 2023.

TSCA PFAS Reporting Rule  

EPA proposed a rule to require reporting of PFAS manufacturing and import data under TSCA in June 2021. The rule establishes reporting and recordkeeping requirements for any person who manufactured or imported a PFAS chemical, a mixture containing a PFAS, or an article containing PFAS in any year since 2011. 

When they published the proposed rule, EPA certified that the rule would not have a substantial economic impact on small businesses.

But after reviewing more than one hundred public comments about the proposal and meeting with small business stakeholders, EPA realized that the “social cost” of the PFAS reporting rule—that is, the total burden a regulation imposes on the economy—would be far greater than they anticipated.

In a notice published to the Federal Register on Friday, November 25, EPA shared an updated economic analysis for the proposed rule. This includes a dramatic increase to the estimated “social cost” of the proposed rule—from $10.8 million to $875 million.

EPA also updated its analysis of the rule’s impact on small businesses. The agency now says that small businesses would face more than $860 million in costs to meet the proposed reporting requirements for PFAS chemicals.

EPA will accept public comments on the updated economic analysis and an Initial Regulatory Flexibility Analysis (IRFA) until December 27, 2022.

Online TSCA Regulations Training 

The TSCA Regulations Online Course guides chemical industry professionals through the chemical management, reporting, and recordkeeping requirements they must know to achieve and maintain compliance with the Toxic Substances Control Act (TSCA). 
 

Tags: chemicals, environmental compliance, PFAS, TSCA