TSCA §§6 and 7-Regulation of Existing Chemicals

• Author: Carolyne R. Hathaway/William K. Rawson/Ann Claassen/Julia A. Hatcher
• Pages: 83-96

Page 83

Chapter IX:

TSCA §§6 and 7—Regulation

of Existing Chemicals

A. Section 6 Regulation of Existing

Chemicals

TSCA §6 provides EPA with the authority to

restrict or ban t he manufacture, processing, distri-

bution in commerce, use, or disposal of chemica l

substances or mixtures on a showing that the activ-

ity, or any combination thereof, “presents or will

present an unreasonable risk of injury to health or

the environment.”1 Permissible regulatory actions

include prohibiting or limiting the amount of man-

ufacture, processing, or distribution of a substance;

prohibiting or limiting manufacture, processing, or

distribution for cer tain uses; establishing concen-

tration limits for specic products or uses; labeling

or warning requirements; recordkeeping require-

ments; and so forth.2 EPA may impose one or more

of the enumerated restrictions “to the extent neces-

sary to protect adequately against such risk using

the least burdensome requirements.”3

To exercise its wide-ranging authority under §6

to rest rict or ban chemical substances, or specic

uses of chemical substances, EPA must proceed by

rulemaking a nd must consider and publish a state-

ment with respect to the following issues:

(A) the eects of such substance or mixt ure on

health and t he magnitude of the exposure of

human beings to such subs tance or mixture,

(B) the eects of such substance or mixture on the

environment and the magnitude of the exposure

of the environment to such substance or mixt ure,

(C) the benets of such substance or mixture for

various uses a nd the availability of substitute s for

such uses, and

1. 15 U.S.C. §2605(a), ELR S. TSCA §6(a).

2. Id. §2605(a)(1)-(7), ELR S. TSCA §6(a)(1)-(7).

3. Id. §2605(a), ELR S. TSCA §6(a).

(D) t he reasonably ascertainable economic con-

sequences of the rule, af ter consideration of the

eect on the national economy, small business,

technological innovation, the environment, and

public health.4

If EPA determines that a risk of injury to

health or the environment could be eliminated

or reduced to a sucient extent by actions taken

under another federal law or laws administered by

EPA, the Agency may not promulgate a rule under

§6(a), unless it nds that it is in t he public interest

to protect against such risk under TSCA.5 In mak-

ing such a nding, the Agency must consider (1) all

relevant aspects of the risk, (2) a comparison of the

estimated costs of complying with actions taken

under TSCA and under t he other law or laws, and

(3) the relative eciency of actions under TSCA

and under such law or laws in protecting against

the risk of injury.6

A rule promulgated under §6(a) must be sup-

ported by “substantial evidence” in the rulemak-

ing record considered as a whole.7 TSCA §6(c)

sets forth procedura l requirements for the prom-

ulgation of nal rules under §6(a), including the

requirement to hold a hearing and aord interested

parties an opportunity to present oral testi mony,

and also opportunity to cross-examine witnesses

on “disputed issues of material fact” to the extent

EPA determines such cross-exa mination is “appro-

priate” and “required for a full a nd true disclosure

with respect to such issues.”8 EPA has authority to

declare a proposed rule under §6(a) eective upon

its publication in the Federal Register where neces-

4. Id. §2605(c)(1), ELR S. TSCA §6(c)(1).

5. Id.

6. Id.

7. Id. §2618(c)(1)(B)(i), ELR S. TSCA §19(c)(1)(B)(i). See

supra Part XIV.B.3.

8. 15 U.S.C. §2605(c)(3)(A), ELR S. TSCA §6(c)(3)(A).