§5.4 - Requirements that Apply to Everyone, Including Users

• Jurisdiction: Washington

§5.4 REQUIREMENTS THAT APPLY TO EVERYONE, INCLUDING USERS

TSCA provides the EPA with the authority to ban the manufacture, processing, distribution, or use of chemical substances. This includes substances that have been approved by the EPA through the premanufacture notification and review procedures. To exercise this authority, the EPA must find that the substance presents or will present an unreasonable risk of injury to health or the environment. 15 U.S.C. §2605(a). The EPA also uses this authority to restrict the manufacture, processing, distribution, or uses of mixtures. The EPA cannot ban all manufacturing and use of a substance if the agency finds that only one particular manufacturing technology or use presents an unreasonable risk.

To exercise this authority, the EPA must initiate rulemaking under the APA. 15 U.S.C. §2605(c). At the time a proposed rule banning or limiting the manufacture, processing, distribution, or use of a substance is published, the EPA presents supporting information on several factors it must consider under TSCA. These include the effects of the substance on health and the magnitude of exposure; the effects of the substance on the environment and the magnitude of releases; the benefits of the substance for various uses and available substitutes; and economic consequences of the proposed ban or limitation. 15 U.S.C. §2605(c). The EPA must also determine that no other federal law provides the authority to protect the public and the environment adequately from the identified risks.

Only a handful of substances have been banned or had their production or use significantly limited under TSCA. These substances include, among others, chlorofluorocarbons, which are banned for use in aerosol propellants; certain mixed diamides and triethanolamine salts, banned as metal-working fluids; and hexavalent chromium chemicals, banned in certain heating, ventilation, and refrigeration systems. See, e.g., 40 C.F.R. pts. 747, 749. Three substances have received the bulk of the EPAs attention under TSCA: asbestos, PCBs, and lead. Regulation of these materials is discussed in more detail below. This list may get bigger, because the Lautenberg Act requires the EPA to take "expedited action" regarding chemicals that are persistent, bioaccumulative, and toxic and that are identified in the 2014 update of the TSCA Work Plan for Chemical Assessments. 15 U.S.C. 2605(h).

(1) Asbestos

The EPAs use of its authority to ban a substance has not been without challenge. Perhaps the most publicized decision under TSCA is the EPAs 1989 rule on asbestos. 40 C.F.R. pt. 763. The rule banned all new uses of asbestos and most existing uses for interior building construction beginning in 1990, banned its use in existing friction products (such as brake pads) beginning in 1993, and banned its use in existing paper products and exterior building construction beginning in 1996. 40 C.F.R. pt. 763, subpt. I. Existing stocks of asbestos could have been sold within one year of the rule and stringent labeling was required for all existing uses until the ban became effective. The EPA provided a process to petition for a waiver based on the unavailability of effective substitute substances. 40 C.F.R. §763.173(d)(2).

The United States Court of Appeals for the Fifth Circuit partially overturned the EPAs TSCA asbestos rule. Corrosion Proof Fittings v. U.S. Envtl. Prot. Agency, 947 F.2d 1201 (5th Cir. 1991). Procedurally, the EPA failed to include in its proposed rule all of the information it eventually used to determine that an unreasonable risk was present as a result of some existing uses. Id. at 1212. Substantively...