EPA Expands Chemical Regulatory Authority Under TSCA

EPA announced on September 28, 2021 that it is reversing its decades-old practice of exempting finished articles from regulation under the federal Toxic Substances Control Act (TSCA). Under the authority of TSCA, EPA evaluates potential risks from new and existing chemicals and takes actions to address any unreasonable risks that chemicals may pose to human health and the environment. In the past, EPA’s practice has been to target the manufacture or import of individual chemicals or chemical mixtures, their use in industrial processes, and products where a regulated substance is the active ingredient, rather than finished articles. Pursuant to the recent change in statutory authority, articles of finished products containing chemicals that EPA is evaluating for risk will now be subject to regulation under TSCA.

EPA officials have indicated that the agency is obligated to regulate articles containing chemicals because products often “break down” and chemicals in the articles are released into the environment and can result in harmful exposures.

Critics of this expanded authority claim that in many cases it is difficult for manufacturers and importers to know what levels of chemicals are in a product and whether the chemicals can be released from the product. This is particularly true now that levels of concern for some chemicals are measured in parts per trillion.

EPA has responded that manufacturers are already required to know what is in their products to comply with European Union regulations as well as U.S. federal and state regulations, that require reporting and labeling product that may contain chemicals identified as a substance of very high concern or whose use may pose an unreasonable risk.

By expanding its regulatory authority under TSCA to essentially all manufactured products, manufacturers, importers, and customers will need to know more about the chemical substances contained in their products and the likelihood of any potential release of that chemical substance. For example, surface finishers and their customers will have to know all of the chemical substances that may end up in the finished product, the likelihood that those chemical substance may be released from the typical use of the product, and the potential exposure routes and risks associated with any such release.

This new approach will likely increase the regulatory burdens and stewardship efforts for many manufacturers beyond the raw materials and processes used to make those products. EPA has already begun to expand its regulatory authority under TSCA to articles containing chemical substances (e.g., see proposed reporting rule for PFAS discussed below).

NASF continues to work with the U.S. Chamber of Commerce and other industry trade groups to engage EPA officials on this new approach to regulating articles or finished products under TSCA. If you have any questions or would like additional information regarding this expansion of EPA’s chemical regulatory authority, please contact Jeff Hannapel with NASF at jhannapel@thepolicygroup.com.

This update is courtesy of the National Association for Surface Finishing (NASF). For more information or to become a member, visit nasf.org.