EPA Issues Proposed Update to TSCA Fees Program Narrowing Scope and Creating Exemptions

The United States Environmental Protection Agency (EPA) has issued proposed updates to the Fees for the Administration of the Toxic Substances Control Act Rule (TSCA Fees Rule).  The TSCA Fees Rule requires that EPA collect fees from chemical manufacturers and processors to offset the costs of EPA’s TSCA activities, including the risk evaluations the Agency conducts on high-priority chemicals under TSCA section 6.

EPA’s December 21, 2020 proposal would modify the current TSCA Fees Rule in several significant ways for fiscal years 2022 through 2024, including:

• Nearly doubling the total cost of each EPA-initiated chemical risk evaluation under TSCA section 6 from $1.35 million to $2.65 million;
• Narrowing the pool of responsible fee-paying entities by providing exemptions for:
  • Importers of articles containing a high-priority substance;
  • Manufacturers of a substance produced as a byproduct;
  • Manufacturers and importers of substances produced or imported as an impurity;
  • Manufacturers and importers of substances in quantities not to exceed 2,500 lbs;
  • Manufacturers of substances produced as a non-isolated intermediate; and
  • Manufacturers and importers of small quantities of chemicals solely for research and development.
• Requiring manufacturers that exclusively export high-priority chemicals to share in fees;
• Adding new fees for certain submissions under the new chemicals program;
• Modifying the fee allocation method; and
• Extending by 30 days the time afforded to fee payers to form consortia to share in fee payments.

Notably, EPA had already announced in March 2020 following criticism from industry stakeholders that it would not collect fees from companies who manufactured or imported chemicals in articles or as byproducts or impurities.  The proposed updates would formalize that position. 

But EPA’s proposed updates narrow the pool of responsible fee-paying entities even further by providing new exemptions for companies manufacturing or importing chemicals only in small amounts (under 2,500 lbs), producing chemicals as non-isolated intermediates, or in small quantities solely for research and development purposes. 

With the pool of responsible payers shrinking and the fee for each risk evaluation nearly doubling, companies should carefully review the proposed updates to the Fees Rule.  Responsible companies may find themselves shouldering more of the fees burden than anticipated.  Other companies who shared in fees for the most recent set of chemical risk evaluations may be able to take advantage of one of the proposed exemptions in the future.  And exporters—who enjoyed an exemption from the last round of fees—could be required to share in the costs of the next set. 

Companies using chemicals included on EPA’s 2014 TSCA Work Plan for Chemical Assessments—the source for most of the high-priority chemicals selected by EPA for review under TSCA section 6—should pay particularly close attention as EPA moves forward with its proposal. 

EPA will accept public comments on its proposal for 45 days following its formal publication in the Federal Register.  A final rule is expected in 2021. 

EPA’s proposed revisions to the TSCA Fees Rule can be found in full here.