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Official Says EPA Prepared in `Near Future' To Use TSCA Authority to Restrict Chemicals

Monday, June 11, 2012

By Pat Rizzuto  

The Environmental Protection Agency is prepared to see “in the near future” whether it can use authority the Toxic Substances Control Act provides to ban or restrict chemicals, the agency's senior chemicals and pesticide official said June 7.

“We will try and exercise some muscle we have not exercised for decades,” Jim Jones, EPA's acting assistant administrator for chemical safety and pollution prevention, told state officials attending the Environmental Council of the States' forum, State Environmental Protection in 2012. The meeting continues through June 8.

Section 6 of TSCA provides EPA with the authority to ban or restrict chemicals.

EPA has not sought to use its Section 6 authority since 1991, when the U.S. Court of Appeals for the Fifth Circuit overturned the agency's attempt to ban asbestos (Corrosion Proof Fittings v. EPA, 947 F.2d 1201, 33 ERC 1961 (5th Cir. 1991)).

“We will find out if it is as hard to use as is said,” Jones told the state officials.

Jones did not name any chemical or group of chemicals that could be the focus of a Section 6 action.

EPA Must Meet Substantial Evidence Test.

Section 6 requires that EPA prove it has substantial evidence that a chemical poses an unreasonable risk before it can ban, restrict, or take other actions to manage that risk. The section also requires that EPA use the least burdensome means to adequately protect against the unreasonable risk.

Meeting that burden of proof is so difficult that the agency has not been able to exercise its Section 6 authority, according to many members of the environmental health advocacy community.

That decision will be based on the outcome of risk assessments the agency announced in March that it would undertake, Jones said.

He referred to EPA's March 1 announcement that it had selected 83 chemicals or groups of chemicals for risk assessment (36 CRR 269, 3/5/12).

The agency has started risk assessments on as many as seven of the 83 chemicals, and it recently announced it would be working on another 18 chemicals in 2013 and 2014 (36 CRR 608, 6/4/12).

Risk Management Action.

The risk management action EPA selects will depend on the outcome of those risk assessments, Jones said.

“If the chemical is safe, our work will be done,” Jones said. Otherwise, the use of Section 6 will be explored, he added.

EPA has been issuing action plans since December 2009. The plans identify regulatory and other actions the agency could take to manage risks of the chemicals. Some of those action plans, such as those the agency issued for hexabromocyclododecane (HBCD), for short-chain chlorinated paraffins, and for perfluorinated chemicals, said the agency would consider using its Section 6 authority.

By Pat Rizzuto  


Information about the 83 chemicals and groups of chemicals EPA has designated as priorities for assessment, and links to the agency's action plans, are available at http://www.epa.gov/oppt/existingchemicals/pubs/managechemrisk.html#current.

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