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The Toxic Substances Control Act ("TSCA") is the federal statute governing the manufacturing, processing, distribution in commerce, use and disposal of chemical substances. TSCA also provides authority to restrict or ban chemical substances presenting unreasonable health or environmental risks, such as asbestos and polychlorinated biphenyls ("PCBs"). The attorneys and technical consultants at MGKF have a substantial amount of experience assisting clients with issues that may arise under TSCA. In particular, MGKF has advised clients on their regulatory obligations in manufacturing, importing, exporting, handling, and disposing of chemical substances, and has defended clients in enforcement actions relevant to such requirements.

Further, following promulgation of the "PCB Mega Rule" by the U.S. Environmental Protection Agency ("EPA") in 1998, MGKF has been engaged in a number of PCB remediation projects covered under the rule. In particular, we have advised clients on remedial options offered under the rule, associated enforcement exposure and liability protection issues, and the interplay between the PCB Mega Rule and state cleanup programs such as Pennsylvania's Act 2 Land Recycling Program and New Jersey's Site Remediation Program. With MGKF's assistance, several of our clients have successfully remediated large PCB-contaminated sites while navigating the complex and varied state and federal requirements governing such cleanups, and gaining the broadest liability protections available.

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Representative MGKF matters involving TSCA issues include the following:

  • MGKF advised a multinational manufacturer on the potential applicability of TSCA import certification rules for shipments of products from the client's China manufacturing plant to U.S. customers, and on whether production or export of a manufacturing process chemical additive triggered TSCA premanufacture notification, export notification, reporting, or recordkeeping requirements.
  • The firm counseled a petroleum refiner on the scope of TSCA's "excluded manufacturing process" exemption governing the manufacture or import of products containing PCBs generated as unintentional impurities. MGKF also advised the client on recordkeeping and EPA reporting requirements associated with this exemption.
  • MGKF counseled a specialty chemical company on TSCA pre-manufacture notification issues and new chemical registration requirements in the United States and a variety of foreign markets, including the European Union, Canada and Asia.
  • We assisted a client with the remediation and sale of a closed New Jersey manufacturing site contaminated with PCBs related to the site's former use as a used oil recovery facility by a prior owner. MGKF worked with the client's consultant to develop an engineering control remediation strategy consistent with the commercial reuse of the site, oversaw preparation of the consultant's work plan to ensure compliance with complex TSCA PCB self-implementing remediation requirements as well as obligations under New Jersey's Industrial Site Recovery Act, and assisted in negotiating contract provisions to address reuse and post-sale access and liability issues with prospective purchasers.
  • MGKF represented the purchaser of a large former military installation in an EPA penalty action related to more than 50 large PCB transformers left at the property by the U.S. Department of Defense.

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