March 01, 2015

In a World Without Congressional Reform: A New (Old) Role for EPA under TSCA Section 6

Angela J. Levin and Maria V. Souder

Congressional reform of the Toxic Substances Control Act (TSCA)—the nation’s chemical management statute—has stalled. Results from last November’s midterm elections have revived national reform efforts, but because Republicans still need sufficient support across the aisle to override a presidential veto, significant work remains before TSCA legislative reform is possible. In the meantime, Jim Jones, the assistant administrator for the U.S. Environmental Protection agency’s (EPA) Office of Chemical Safety and Pollution Prevention, has indicated the agency intends to use all available tools under TSCA to regulate new and existing chemical substances, including manufacturing and use restrictions under section 6. Many stakeholders may be wary of EPA’s intent to rely on section 6 and skeptical in light of the Fifth Circuit’s rejection of the agency’s attempt to ban asbestos under section 6, as litigated in Corrosion Proof Fittings v. EPA, 947 F.2d 1201 (5th 1991). However, Corrosion Proof Fittings should not be read so broadly as to negate section 6, and in fact, there may be reasons to support a narrow reading of what has frequently been couched as the death knell for EPA’s authority to regulate existing chemicals under this section.

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