Beveridge & Diamond
 

EPA Amends TSCA Export Notification Rule To Reduce Burden

Beveridge & Diamond, P.C., November 15, 2006

On November 14, 2006, EPA promulgated amendments to its Toxic Substances Control Act (TSCA) Section 12(b) regulations, which require notification to EPA of the export of chemical substances and mixtures subject to certain TSCA regulatory action.  Among the actions triggering notification obligations are testing requirements, orders restricting new chemicals for which premanufacture notifications (PMNs) have been submitted, significant new use rules (SNURs), and chemical bans or restrictions under TSCA Section 6.  The new amendments, which take effect January 16, 2007, make two primary changes expected to reduce the burdens on exporters.  They also contain several minor updating or clarifying provisions.

First, EPA is reducing the frequency with which many such notifications must be submitted.  Notifications have previously been required for the first export to a country each year, except for substances for which the notification is triggered by TSCA Section 4 testing requirements, in which case notifications are only required for the first export to a country with no subsequent annual notifications.  EPA has now reduced notifications to one-time per country reporting for the materials subject to notification obligations because of  the following additional categories of regulatory actions:

  • proposal or promulgation of a SNUR under TSCA Section 5(a)(2);
  • a requirement under Section 5(b) to submit Section 4 test data on a PMN chemical; and
  • an order, pending action, or other relief under Section 5(e) (imposing restrictions on PMN chemicals pending the development of additional information).

EPA will retain annual per-country notification requirements for substances restricted or proposed to be restricted under Sections 5(f) (new chemicals), Section 6 (regulation of existing chemicals), and Section 7 (court seizure or injunctive relief with respect to “imminently hazardous” substances or mixtures).

Second, responding to a longstanding industry concern, EPA has adopted de minimis concentration thresholds, below which export notification is not required.  If a substance otherwise subject to export notification is present in the exported material at a concentration of less than 1%, no notification will be required unless the substance is a known or suspected carcinogen, in which case the threshold is 0.1%, or a PCB, for which the threshold is 50 parts per million.  (Note that the 0.1% threshold for carcinogens, explained in the regulatory preamble, appears to have been omitted in the actual regulatory text in the Federal Register; a correction will presumably be forthcoming.)

To read the full text of the Federal Register notice promulgating the amendments, see 71 Fed. Reg. 66237.  For more information about the amendments, TSCA export notification generally, or other TSCA requirements, please contact Cindi Lewis, of Beveridge & Diamond, P.C.’s Washington office, at 202-789-6018 or clewis@bdlaw.com.