Biden Administration Poised to Implement TSCA Requirements

January 11, 2021
Todd D. Kantorczyk, Esq.
MGKF Special Alert - Federal Forecast 2021

First, the incoming Biden administration will be charged with implementing key components of the 2016 TSCA amendments and could use that authority to expand EPA’s view as to whether an existing chemical presents an unreasonable risk of injury to health or the environment.  As of the date of this publication, EPA had completed seven of the risk evaluations for the “first ten” high priority substances and has indicated that two more will be completed before Inauguration Day.  The Biden administration may look for opportunities to reopen one more of these risk evaluations and employ a revised approach (such as looking at other uses, exposure routes, and sensitive subpopulations) which could alter the initial conclusions. 

For example, in July, a coalition of environmental groups and unions filed a petition in the 9th Circuit Court of Appeals challenging EPA’s final risk evaluation for methylene chloride.  The Biden administration could use this petition as a vehicle to revisit that risk evaluation.  Similarly, in September EPA issued final scopes of risk evaluations for the “next twenty” high priority substances.  The Biden administration could reexamine these scopes and ultimately approach the risk evaluation process for these chemical substances in a fundamentally different way that increases the likelihood of finding uses that present unreasonable risks.

The Biden administration will also have the opportunity to influence the outcome of several other pending, planned or court-directed TSCA actions in 2021. First, EPA recently released a new proposed TSCA fee rule, which will govern the fees manufacturers, importers, and certain processors a required to pay to fund EPA’s costs to implement TSCA.  The proposed rule includes new exemptions for certain manufacturers and importers that are analogous to the current Chemical Data Rule (CDR) exemptions.

EPA is also scheduled to address a number of other TSCA rules in the near future, including:

(1) a rule governing a one-time reporting event of per- and polyfluoroalkyl substances (PFAS) manufactured or imported after January 1, 2011;

(2) a rule revising the process by which EPA reviews and makes determinations on premanufacture notices for new chemicals; and

(3) new rules on submitting and supporting confidential business information claims. 

Finally, at the very end of 2020, a federal court in the Northern District of California ordered EPA to revise the CDR with respect to asbestos, and “address” certain exemptions, exclusions and the reporting threshold.  This and the noted rulemakings will afford a full TSCA plate for the new EPA Administrator.