November 29, 2022
On November 16, 2022, the US Environmental Protection Agency (EPA) released a supplemental proposed rule to increase the fees the agency collects under the Toxic Substances Control Act (TSCA). First promulgated in 2018, the TSCA Fees Rule, as required by the 2016 Lautenberg Amendments to TSCA, allows EPA to set fees to annually defray up to 25 percent of its costs of carrying out certain TSCA activities. These activities include the administration of TSCA Section 4 (test rules, consent agreements and orders), TSCA Section 5 (new chemicals), TSCA Section 6 (existing chemicals), and TSCA Section 14 (confidential business information). EPA imposes fees on persons required to submit information under Section 4 of TSCA, Section 5 notices, and Section 6(b) risk evaluations.
EPA is proposing to increase fees because it claims fee revenues have been about half of what it estimated when it established fees in 2018. EPA is also adjusting fees to account for the additional resources needed for anticipated TSCA implementation efforts—including efforts to reduce the backlog of new chemical reviews and to complete the forthcoming existing chemical risk evaluation and risk management rules. Consistent with EPA’s focus on environmental justice, including under TSCA, the proposal also states that the fees will allow EPA to better protect human health and the environment, including in low-income and minority communities. The table below shows how EPA proposes to increase the various TSCA fees. Of note, reviews for new chemicals may increase from $19,020 to $45,000 if the rule is finalized, and costs of EPA-initiated risk evaluations under Section 6 will increase from approximately $2.5 million to $5.1 million, a staggering increase from the $1.35 million fee initially set in 2018.
Also of note, EPA proposes to require processors to pay fees for TSCA Section 4 test orders and enforceable consent agreements if no manufacturers or importers are identified. It also proposes to assess fees on any manufacturer or importer who is required to submit information to EPA in response to a test order, rather than only manufacturers/importers who actually conduct testing. EPA proposes exemptions for certain entities subject to TSCA Section 4 testing fees and Section 6 risk evaluation fees, although it is proposing to narrow the byproduct exemption to include only manufacturers of byproducts that are not later used for commercial purposes or distributed for commercial use. Lastly, EPA proposes revisions to how fees are allocated between companies subject to EPA-initiated risk evaluations.
EPA plans to hold a public webinar on Tuesday, December 6, 1:00-2:30 p.m. EST, to provide an overview of the proposed rule. Register for the webinar here. Comments on this supplemental proposal are due to EPA by January 17, 2023.
The chemicals and product stewardship team at Hunton Andrews Kurth is available to answer any questions you may have about how this supplemental proposal will impact your organization.