On January 27, EPA published a preliminary list of manufacturers that are potentially subject to a fee obligation under the Toxic Substances Control Act (“TSCA”). This is a follow-up notice to EPA’s designation of 20 additional substances as High Priority Substances in December, for which the agency will now go through a risk evaluation, including:
- trans-1,2- Dichloroethylene
- Dibutyl phthalate (DBP) (1,2-Benzene- dicarboxylic acid, 1,2- dibutyl ester)
- Butyl benzyl phthalate (BBP) – 1,2-Benzene- dicarboxylic acid, 1- butyl 2(phenylmethyl) ester
- Di-ethylhexyl phthalate (DEHP) – (1,2-Benzene- dicarboxylic acid, 1,2- bis(2-ethylhexyl) ester)
- Di-isobutyl phthalate (DIBP) – (1,2-Benzene- dicarboxylic acid, 1,2- bis-(2methylpropyl) ester)
- Dicyclohexyl phthalate
- 4,4′-(1-Methylethylidene)bis[2, 6-dibromophenol] (TBBPA)
- Tris(2-chloroethyl) phosphate (TCEP)
- Phosphoric acid, triphenyl ester (TPP)
- Ethylene dibromide
- 1,3,4,6,7,8-Hexahydro-4,6,6,7,8,8-hexamethylcyclopenta [g]-2-benzopyran (HHCB)
- Phthalic anhydride
Under the Frank R. Lautenberg Chemical Safety for the 21st Century Act of 2016, EPA has the right to collect fees from manufacturers (including importers) of substances that are undergoing a risk evaluation.
EPA has prepared lists of manufacturers for each substance, which are available in Docket EPA-HQ-OPPT-2019-0677. The fee obligation can be imposed on a company even if the substance is imported as part of an article, manufactured in small amounts or even as a byproduct or an impurity. Nevertheless, because EPA used Toxic Release Inventory (“TRI”) reports as a source to generate its preliminary lists, it is also possible that EPA has incorrectly identified companies as manufacturers.
EPA is opening a 60-day comment period for companies to either disagree with EPA’s conclusion that they qualify as a manufacturer or to self-identify as a manufacturer if the Agency inadvertently left them off the list. EPA notes that a failure to self-identify during the comment period would qualify as a violation of TSCA, and subject the company to per-day penalties for failure to report. Companies also have the opportunity to submit a certification that the company ceased manufacture prior to March 20, 2019, which would exempt them from the fee, or to submit a small business certification, which would substantially reduce the fee for that manufacturer. The comment period will close on March 27, 2020.
This notice potentially has significant implications as the fee for each risk evaluation is $1.35 million, to be divvyed up between all of the manufacturers that EPA lists in its final rule (which is expected to be published concurrently with the scoping document for each substance’s risk evaluation). As a result, it will be important for listed companies to evaluate whether EPA’s designation is correct, whether the company is eligible to submit a certification that it ceased manufacture prior to the cutoff date, and whether the company qualifies as a small business. Finally, companies that are not on the list should nevertheless review their manufacturing processes over the past five years carefully to ensure that they do not have an obligation to self-identify for any substances.