TSCA Fees Rule for EPA-Initiated Risk Evaluations: An Opaque and Evolving Story – Update from Bergeson & Campbell, P.C.

Under Toxic Substances Control Act (TSCA) Section 26(b), as amended by the Frank R. Lautenberg Chemical Safety for the 21st Century Act (Lautenberg Act), the U.S. Environmental Protection Agency (EPA) is authorized to collect fees from chemical manufacturers (defined to include importers under TSCA) to defray a portion of the EPA costs associated with TSCA implementation efforts.  The TSCA Fees Rule, which became effective on October 18, 2018, requires payment of fees for eight categories of fee-triggering events under TSCA, including EPA-initiated risk evaluations under TSCA Section 6.  83 Fed. Reg. 52694.

As part of the final Fees Rule, EPA is required to prepare a preliminary list of manufacturers subject to fee obligations for EPA-initiated Section 6 risk assessments. On January 27, 2020, EPA published a Federal Register notice identifying the preliminary lists of manufacturers of the 20 high-priority chemical substances for risk evaluation for which fees will be charged.  85 Fed. Reg. 4661. Since initial issuance, the lists have been a moving target, not only because of procedures mandated under the Fees Rule that contemplate the self-identification of manufacturers covered by the rule, but also as a result of policy changes made outside of the rulemaking process that served to reduce the set of persons required to pay a fee and the need to make corrections to the lists.

This memorandum provides a summary of the several updates and adjustments made to the lists of manufacturers of the 20 high-priority chemical substances undergoing risk evaluation subject to fee obligations. After the summary, our commentary includes information on invoices EPA has transmitted to certain manufacturers, exemptions that have been granted, and recommended actions for EPA to address the issues that have arisen in the early stages of TSCA Fee Rule implementation. Read the full memorandum here.