EPA issued several final rules to implement the recent bipartisan amendments to the Toxic Substances Control Act (TSCA) on June 22.  The final rules included regulations on how it will prioritize chemicals as either high or low priority for review, and how it will evaluate high priority chemicals.  Several lawsuits were filed challenging the rules.  The lawsuits were consolidated in the 4th and 9th Circuits Courts of Appeals.  A separate lawsuit was filed in the D.C. Circuit Court of Appeals.  One of the principal issues in the lawsuits will be the exclusion from EPA review of certain categories of uses of chemicals.  For example, one of the controversial exclusions is for uses of chemicals that are regulated by other agencies, such as chemical usage in the workplace regulated by OSHA.

The plaintiffs in the rule challenges argue that the TSCA amendments clearly specify that EPA is to consider all uses of chemicals it is evaluating for regulation under TSCA.  They cite Section 2602(4) of the law defining conditions of use as the circumstances under which a chemical substance “is intended, known, or reasonably foreseen to be manufactured, processed, distributed in commerce, used, or disposed of.”  EPA and industry supporters of the rule cite to Section 2605(b)(4)(d) as providing EPA with discretion to determine “the scope of the risk evaluation to be conducted, including the hazards, exposures, conditions of use, and the potentially exposed or susceptible subpopulations the Administrator expects to consider.”

The determination by the Courts of the validity of the limitations in the EPA rules will have broad impact on industry’s production of and use of chemicals.  If the Courts defer to EPA’s interpretation of the statute, its control of chemical production and usage will be narrower than many expected under the amended statute.  If the Courts strike down EPA’s interpretation as contrary to the statute, it will be forced to broaden its control of chemicals, perhaps with reduced budgets for accomplishing that work.

For more information on TSCA, the EPA rules, and the pending litigation challenging those rules, contact Steve O’Day.