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Certain TSCA Rulemaking Procedures Modified

Wednesday, December 21, 2016
Sandler, Travis & Rosenberg Trade Report

The Environmental Protection Agency has issued a final rule that removes the regulations specifying certain procedural requirements for rulemaking under section 6 of the Toxic Substances Control Act, which provides the EPA with several authorities for addressing risks from chemical substances and includes procedures the agency must follow in doing so. Among the procedural requirements that have been removed is the requirement for a hearing because TSCA, as amended by the Frank R. Lautenberg Chemical Safety for the 21st Century Act, no longer mandates it.

More specifically, the EPA is removing 40 CFR Part 750, Subpart A (the general procedural requirements for rulemaking under TSCA section 6). Subpart A detailed hearing-related procedures as well as the content and timing of the EPA’s notices and the agency’s record. This action also removes the similar provisions from the procedural rules in subparts B and C for exemptions from the prohibitions in TSCA section 6(e) applicable to polychlorinated biphenyls.

The EPA notes that the Frank R. Lautenberg Chemical Safety for the 21st Century Act establishes specific deadlines and procedures for prioritizing chemicals for risk evaluations, conducting the risk evaluations, and promulgating regulations to address unreasonable risks that are identified. Notably, once unreasonable risks have been identified through a risk evaluation TSCA section 6(c)(1) now requires the EPA to issue a proposed rule to address the risks no later than one year after the final risk evaluation is published, and the final rule must be issued no later than two years after the final risk evaluation is published, subject to the limited extension authorized by TSCA section 6(c)(1)(C).

After reviewing 40 CFR part 750 in light of the amendments to TSCA, the EPA determined that the procedural regulations in subpart A do not facilitate the efficient administrative process envisioned by the TSCA reform legislation. The agency adds that with the statutory amendments’ removal of the informal requirement and the addition of ambitious deadlines for action under section 6, subpart A is particularly outdated and no longer designed for effective implementation of section 6.

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