{"id":9788,"date":"2020-08-31T07:32:27","date_gmt":"2020-08-31T12:32:27","guid":{"rendered":"http:\/\/blogs.edf.org\/health\/?p=9788"},"modified":"2024-02-12T11:02:29","modified_gmt":"2024-02-12T16:02:29","slug":"what-the-heck-is-going-on-with-epas-risk-evaluation-fees-under-tsca","status":"publish","type":"post","link":"https:\/\/blogs.edf.org\/health\/2020\/08\/31\/what-the-heck-is-going-on-with-epas-risk-evaluation-fees-under-tsca\/","title":{"rendered":"What the heck is going on with EPA\u2019s risk evaluation fees under TSCA?"},"content":{"rendered":"

Richard Denison, Ph.D.,\u00a0<\/em>is a Lead Senior Scientist.<\/p>\n

What a mess.\u00a0 That\u2019s the best that can be said from the outside about the process EPA has followed to decide which companies are to pay fees to help defray the agency\u2019s costs of conducting risk evaluations for the next 20 chemicals under the Toxic Substances Control Act (TSCA).[pullquote]EPA\u2019s steps to endanger its ability to collect the fees under TSCA that Congress mandated border on self-sabotage.<\/em><\/strong>[\/pullquote]<\/p>\n

These fees were set forth in EPA\u2019s final TSCA fees rule<\/a> issued in October 2018.\u00a0 The total fee assigned to each of the next 20 chemicals for which risk evaluations are now underway was set at $1.35 million<\/a>.\u00a0 That fee is to be paid by manufacturers (including importers) of a chemical.\u00a0 TSCA provided EPA with authority to charge processors of these chemicals a fee as well, but the agency opted to exclude processors from such fees in its final rule (see p. 52,696).\u00a0 EPA also opted not to charge fees to cover any of the costs it incurred for the first 10 risk evaluations (see p. 52,708 of the fees rule), although it had authority to do so.<\/p>\n

Last week EPA issued<\/a> what it calls its \u201cinterim final list\u201d of companies obligated to pay fees to cover the costs of the next 20 risk evaluations.\u00a0 The list is dramatically scaled-back from the agency\u2019s earlier list, and it is impossible for the public to understand the basis for the changes.\u00a0 That is in no small part due to the convoluted, opaque, and legally suspect process EPA has followed.\u00a0 <\/p>\n

A long and winding road<\/strong><\/p>\n

Back in January, EPA issued a preliminary list<\/a> of companies it had identified as potentially subject to the fees for risk evaluations of the 20 chemicals.\u00a0 EPA used company reports submitted under its Chemical Data Reporting (CDR)<\/a> rule and Toxics Release Inventory (TRI)<\/a> as sources to identify the companies.\u00a0 Publication of these lists triggered a 60-day comment period during which time manufacturers of any of the 20 chemicals were to \u201cself-identify,\u201d whether or not they were included on the list.\u00a0 That\u2019s when companies started a collective freak-out.\u00a0 It took the form of them seeking to have EPA carve out exemptions<\/em> from fee obligations.<\/p>\n

Bear in mind that TSCA does not provide for any such exemptions; see TSCA section 26(b)<\/a>.\u00a0 Moreover, neither does EPA\u2019s final rule implementing the fee provisions of TSCA; the only exemptions from any of TSCA\u2019s fees are for manufacturers of microorganisms<\/em>, not chemicals, and for submitters of certain reports on polymers; see 40 CFR 700.45(e)<\/a>.<\/p>\n

Nonetheless, EPA was happy to oblige.\u00a0 As reported in the trade press<\/a>, it promptly convened a call with companies making the 20 chemicals to assure them that it was working to \u201clessen\u201d their concerns by developing a variety of exemptions from fee obligations, starting with an exemption for importers of articles containing any of the 20 chemicals.\u00a0 Companies used the call to press EPA for numerous additional exemptions, including for chemicals produced or present in a de minimis<\/em> amount; as an impurity or byproduct; as a non-isolated intermediate; and for research and development.<\/p>\n

Note that EPA had already indicated in January that such import or other activities were not<\/em> exempt from fees; see page 4,663 here<\/a>.\u00a0 Companies also renewed calls for EPA more broadly to exempt chemicals where risk or exposure is thought to be low or is regulated under another statute. \u00a0Industry had lobbied for just such exemptions to be included in the fee rule, but EPA declined to do so; see page 6 here<\/a>.<\/p>\n

This time, however, the industry\u2019s pleas for exemptions fell on the more receptive ears of political appointees at the agency.<\/p>\n

In March, in apparent recognition of the fact that it couldn\u2019t simply create the desired exemptions out of whole cloth when they hadn\u2019t been included in the fee rule, EPA issued a press release<\/a> making two promises to the industry.\u00a0 First, EPA would seek to add a host of exemptions to the next iteration of the fee rule — despite the fact that, while TSCA does require EPA to revisit the rule every three years, it limits that revisiting only to adjusting the level of fees to ensure they are adequate to cover the relevant agency activities; see TSCA section 26(b)(4)(F)<\/a>.<\/p>\n

Second, EPA told the industry that it would meanwhile look the other way if companies that engaged in certain fee-triggering activities chose not to self-identify.\u00a0 This took the form of a rare \u201cno action assurance<\/a>\u201d issued by EPA that signaled it would not enforce the law and its own rule against companies that chose not to self-identify because they: import the chemical in an article; produce the chemical as a byproduct; or produce or import the chemical as an impurity.\u00a0 The \u201cno action assurance\u201d runs until EPA promulgates a new fee rule that includes the exemptions, or September 30, 2021, whichever is earlier.<\/p>\n

Yet more corners to be cut going forward<\/strong><\/p>\n

EPA has accommodated the chemical industry in at least two other ways.\u00a0 First, it granted not one, but two, extensions of the comment period for self-identification, one<\/a> from March 27 to May 27, and then again<\/a> from May 27 to June 15.<\/p>\n

Second, this spring, industry groups began seeking delays in fee payments, citing the pandemic and cash flow problems. \u00a0The American Coatings Association, Adhesive and Sealant Council, Chlorine Institute, Color Pigments Manufacturers Association, National Association of Chemical Distributers, Society of Chemical Manufacturers and Affiliates, and Vinyl Institute asked EPA<\/a> to provide a year for full payment of the required fees, instead of the 120 days required under the fee rule.<\/p>\n

EPA\u2019s email last week announcing the issuance of the \u201cinterim final list\u201d of companies subject to fees signals EPA will likely grant industry the \u201cforbearance\u201d it seeks.\u00a0 The email states:\u00a0 \u201cDue to the public health emergency, EPA is exploring options for payment flexibilities.\u201d\u00a0 (Remember when health and community groups asked EPA to extend the public comment period for the draft risk evaluation of trichloroethylene due to the pandemic. and EPA refused to do so<\/a>?)<\/p>\n

Why does this matter?<\/strong><\/p>\n

This hodge-podge of fits and starts is difficult to sort out.\u00a0 If it does not result in a reduction in fee revenue EPA receives to help cover the costs of risk evaluations, or in significant delays in receipt of the fees, it may not be such a big deal.\u00a0 But there are already signs the revenue may in fact be significantly reduced, and any delays in fee payment EPA allows will also have consequences.\u00a0 For example, as a result of changes made to the lists between January and yesterday, one of the 20 chemicals (the flame retardant TCEP) now has no \u2013 zero<\/em> \u2013 identified fee payers.\u00a0 If that holds in the final final list, EPA \u2013 and the American taxpayer \u2013 will be out $1.35 million.<\/p>\n

If fees are lost or delayed due to EPA\u2019s accommodation of industry concerns, that reduces EPA\u2019s capacity to conduct timely, robust risk evaluations.\u00a0 The TSCA clock is already ticking on the next 20 risk evaluations, and EPA is already well behind schedule.<\/p>\n

EPA\u2019s steps to endanger its ability to collect the fees under TSCA that Congress mandated border on self-sabotage.<\/p>\n

Last but not least, EPA needs to be held accountable for the changes it has made along the way.\u00a0 EPA needs to provide a clear, public explanation of the reason it removed any company from the preliminary list.\u00a0 Otherwise it is difficult to see the process as anything other than arbitrary, as EPA bending to the special industry interests who squawk the loudest.<\/p>\n

EPA\u2019s handing out of exemptions that have no basis in TSCA or its own fee rule, and its signal to companies that lack of compliance with the fee requirements won\u2019t be viewed by EPA as a big deal, are deeply disturbing and again smack of favoritism, backroom deals and yet another example of EPA elevating private interests over the public interest when it comes to chemical safety.<\/p>\n","protected":false},"excerpt":{"rendered":"

Richard Denison, Ph.D.,\u00a0is a Lead Senior Scientist. What a mess.\u00a0 That\u2019s the best that can be said from the outside about the process EPA has followed to decide which companies are to pay fees to help defray the agency\u2019s costs of conducting risk evaluations for the next 20 chemicals under the Toxic Substances Control Act …<\/p>\n","protected":false},"author":100,"featured_media":9792,"comment_status":"open","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"_acf_changed":false,"footnotes":""},"categories":[44,56093,114108],"tags":[68,91723,91722],"coauthors":[],"class_list":["post-9788","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-policy","category-industry-influence","category-tsca","tag-epa","tag-fees","tag-risk-evaluation"],"acf":[],"aioseo_notices":[],"_links":{"self":[{"href":"https:\/\/blogs.edf.org\/health\/wp-json\/wp\/v2\/posts\/9788","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/blogs.edf.org\/health\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/blogs.edf.org\/health\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/blogs.edf.org\/health\/wp-json\/wp\/v2\/users\/100"}],"replies":[{"embeddable":true,"href":"https:\/\/blogs.edf.org\/health\/wp-json\/wp\/v2\/comments?post=9788"}],"version-history":[{"count":1,"href":"https:\/\/blogs.edf.org\/health\/wp-json\/wp\/v2\/posts\/9788\/revisions"}],"predecessor-version":[{"id":12917,"href":"https:\/\/blogs.edf.org\/health\/wp-json\/wp\/v2\/posts\/9788\/revisions\/12917"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/blogs.edf.org\/health\/wp-json\/wp\/v2\/media\/9792"}],"wp:attachment":[{"href":"https:\/\/blogs.edf.org\/health\/wp-json\/wp\/v2\/media?parent=9788"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/blogs.edf.org\/health\/wp-json\/wp\/v2\/categories?post=9788"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/blogs.edf.org\/health\/wp-json\/wp\/v2\/tags?post=9788"},{"taxonomy":"author","embeddable":true,"href":"https:\/\/blogs.edf.org\/health\/wp-json\/wp\/v2\/coauthors?post=9788"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}