TSCA Sections Regulations — US EPA Course Reversal? | Jenner & Block


In preparation for Remarks from US EPA Chief Chemicals Officer Michael Freedhoff who were presented at the Product Stewardship Society’s annual meeting, Freedhoff made it clear the agency’s intention to back off and aggressively seek to regulate items finished under the Toxic Substances Control Act (“TSCA”). Historically, the US EPA has focused on the manufacture or import of chemicals and chemical mixtures as opposed to finished items. However, in his written remarks, Freedhoff focused on the articles, stating that “the law is very clear that when a chemical enters the United States, or is distributed or processed in the United States – whether in bulk or in an article – it may be subject to regulation under the TSCA ”.

Recent actions by the US EPA have highlighted an intention by the US EPA to begin regulating items under the TSCA. For example, in January 2021, the US EPA published final rules to regulate Persistent, Bioaccumulative and Toxic Final Chemicals (“PBT”) under Section 6 (h) of the TSCA – these final rules prohibited the use of some of these PBT chemicals in finished articles. Although the US EPA has indicated that it intends to launch a new regulation for these five PBT chemicals and extended the compliance deadline to March 8, 2022, Freedhoff’s remarks certainly indicate that the US EPA intends to rely on its TSCA authority to regulate these finished articles. Another example of the US EPA’s efforts to regulate articles can be found in the TSCA proposed reporting rule for manufacturers of per- and polyfluoroalklyl compounds (“PFAS”). The proposed rule would require those who manufacture (including import) or have manufactured PFAS chemicals in any year since January 1, 2011 to report on the uses, production volumes, disposals and hazards of PFAS. Specifically, there is no exemption in the proposed reporting rule for PFAS in the articles and Freedhoff specifically noted that the proposed rule “is another example of the Agency’s use of its power to propose regulatory requirements applicable to articles imported under the TSCA ”.

Based on recent US EPA regulatory actions coupled with comments prepared by Freedhoff, it seems clear that the US EPA intends to focus its TSCA regulatory authority on articles. We will continue to monitor these ongoing regulatory initiatives through Lawyer in corporate environment Blog.

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