EPA's Action Plans Signal a New Chapter for TSCA While Informing the Future Legislative Debate on Chemicals

• Date: 01 March 2010
• Author: Charles M. Auer, Lynn L. Bergeson, and James V. Aidala

3-2010 NEWS & ANALYSIS 40 ELR 10243

C O L U M N S

cals of Concern” list and commence a

process that may result in regu lations

requiring “signicant risk reduction

measures” to protect human health and

safety. e Chemicals of Concern list

will rely on EPA’s authority under TSCA

§5(b)(4)(A)(i), which authorizes EPA by

rule to “compile and keep current a list

of chemica l substances with respect to

which the Administrator nds that the

manufacture, processing, dist ribution

in commerce, use, or disposal, or any

combination of such activities, presents

or may present an unreasonable risk of

injury to health or the environment.”

is section of TSCA, previously

described as the “Risk List,” has not

otherwise been used by EPA. e list-

ing requires a rulemaking and a nding

that a chemica l “presents or may pres-

ent an unreasonable risk,” and EPA’s

EPA’s Action Plans Signal a New Chapter

for TSCA While Informing the Future

Legislative Debate on Chemicals

by Charles M. Auer, Lynn L. Bergeson, and James V. Aidala

Charles M. Auer, formerly the Director of EPA’s Oce of Pollution Prevention and Toxics, was responsible for EPA’s implementation of TSCA

from 2002 until retirement in January 2009. Mr. Auer is currently with Charles Auer & Associates, LLC, and is aliated with Bergeson &

Campbell, P.C. Lynn L. Bergeson is Managing Director of Bergeson & Campbell, P.C., a Washington, D.C., law rm focusing on conventional

and engineered nanoscale chemical, pesticide, and other specialty chemical product approval and regulation, environmental health and

safety law, peruorinated chemicals, polybrominated diphenyl ethers in products, chemical product litigation, and associated business issues.

Ms. Bergeson is President of the Acta Group, L.L.C. and the Acta Group EU, Ltd. with oces in Washington, D.C., and Manchester, UK.

James V. Aidala was Assistant Administrator for Toxics under the Clinton Administration and is now with Bergeson & Campbell, P.C.

Late last December, U.S. Environ-

mental Protection Agency (EPA)

Administrator Lisa P. Jackson

announced action plans on phthal-

ates, long-chain chlorinated para ns

(LCCPs), and short-chain chlorinated

parans (SCCPs). e four action plans

are the rst of many, as EPA intends to

issue eight more or so in 2010. is

EPA initiative announces actions that

are almost breathtaking in scope, and

its development and implementation

of the action plan items will set a num-

ber of new precedents—and possibly

shape future legislative proposals—

that industry will need to participate

in and monitor closely. EPA has never

previously announced so many actions

under the Toxic Substances Control Act

(TSCA), nor has it ever cited use of §6

so widely. Moreover, that it was issued

in this form after being reviewed by

the Oce of Ma nagement and Budget

is signicant and portends potentially

great and largely unfettered EPA activ-

ity in the months to come. A nal point

is to recognize EPA’s decision to rely

on the Oce of Pollution Prevention

and Toxics’ (OPPT’s) Design for the

Environment (DfE) program to assist

in conducting alternatives assessments

for two of the chemical classes (phthal-

ates and PBDEs). e DfE program’s

previous alternatives assessments have

been open to participation by industry

as well as other stakeholders in a forum

that a llows for complex issues and dif-

culties to be explained and addressed.

e action plans, discussed in more

detail below, summarize ava ilable ha z-

ard, e xposure, and use information;

outline the risks th at each chem ical

may present; and identi fy specic steps

EPA is taking to address those con-

cerns. Accord ing to EPA, “[a]s those

actions begin, there will be opportu-

nities for public and stakeholder com-

ment and involvement.” EPA states that

its actions “represent its determination

to use its authority u nder t he ex isting

TSCA to the fullest ex tent possible,

recognizing EPA’s strong belief that

the 1976 law is b oth outdated and in

need of reform.”

Administrator Jackson also announced

that EPA intends to establish a “Chemi-

Lynn L. Bergeson James V. AidalaCharles M. Auer

Copyright © 2010 Environmental Law Institute®, Washington, DC. reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.