Proposed TSCA Fees Rule to Help with Implementation of the Law

November 21, 2022
The EPA recently issued a supplemental proposed rule modifying and adjusting certain aspects of the fees rule established under the Toxic Substances Control Act (TSCA). EPA is publishing these changes to ensure that collected fees provide the Agency with 25% of authorized TSCA costs consistent with direction in the FY 2022 appropriations bill to consider the “full” implementation costs of the law. Updating TSCA fees will strengthen EPA’s ability to successfully implement TSCA in a way that’s both protective and sustainable and significantly improve on-time performance and quality.
 
“For the last six years, we’ve lacked the needed resources to build a sustainable chemical safety program that’s grounded in science, protects communities from dangerous chemicals, and supports innovation,” said Assistant Administrator for the Office of Chemical Safety and Pollution Prevention Michal Freedhoff. “With today’s action, we’re continuing to adjust TSCA fees to account for the full costs of running the program the way that Congress intended – in both the 2016 law and in the FY 2022 appropriations bill.”
 
When Congress reauthorized TSCA in 2016, it provided EPA with a great deal of new authority and responsibility. Despite the dramatic increase in responsibility, the budget for the TSCA program has remained essentially flat over the past six years. While Congress provided the Agency with new authority to collect fees to offset up to 25% of authorized TSCA implementation costs, the first TSCA fees rule was not finalized until late 2018, and thus fees were not collected until FY 2019. The 2018 fees rule also excluded all the costs for the first ten risk evaluations, which are the highest-cost activities for TSCA implementation. Additionally, the costs baseline chosen for the 2018 rule was what the Agency spent on implementing TSCA before it was amended in 2016, not what it would cost the Agency to implement it in the manner envisioned and directed by Congress. EPA also did not conduct a comprehensive budget analysis designed to estimate the actual costs of implementing the 2016 law until the spring of 2021. Even with the artificially low baseline used to calculate the fees, EPA still only collected about half of the 25 percent target in fees since the 2018 rule was finalized.     
 
Reports from EPA’s Office of Inspector General and the Government Accountability Office also note EPA’s lack of resources for the TSCA program and the impact it’s had on implementing the 2016 law as well as the need for better cost estimates. Additionally, EPA’s October 2022 report to Congress on the Agency’s capacity to implement the 2016 law acknowledges compounding failures on the EPA’s part to adequately assess its resource needs and the importance of establishing fees that capture the updated cost of EPA’s TSCA work. In the FY 2023 budget request, the President has asked for an increase of $59 million and 175 additional full-time equivalents above FY 2022 enacted levels to support the TSCA program. Those additional resources, together with establishing and collecting fees that reflect the estimated cost of the EPA’s TSCA work, are critical to building a sustainable program.
 
In January 2021, the previous Administration proposed changes to the 2018 fees rule consistent with the law’s direction to review and, if necessary, adjust fees every three years. The proposal was based on cost data from FY 2019 and 2020 which were the first full fiscal years after EPA implemented a time reporting system that tracks employee hours worked on administering TSCA. However, this estimate did not include the costs of TSCA risk management activities that are now underway for the first 10 chemicals reviewed under amended TSCA or the costs that will be required for the risk management of any of the 20 chemicals currently undergoing risk evaluation should the Agency find unreasonable risks. 
 
Since the proposed rule was published in 2021, EPA conducted the first-ever analysis of workforce and budget to develop a more accurate estimate of its anticipated costs to implement TSCA in the manner envisioned by Congress when it amended the law in 2016. In the rule released recently, EPA is proposing to revise its costs estimates based on the 2021 analysis. The proposed fees are informed by the Agency’s experience administering TSCA since 2016, and factors in the Agency’s failure to meet the statutory deadlines for nine of the first 10 risk evaluations and consistent challenges meeting the requirements associated with reviewing new chemicals. 
 
EPA is also proposing other changes, including providing a timeframe for a partial refund of fees for new chemical submissions withdrawn from the review process; narrowing certain fee exemptions contained in the January 2021 proposal; modifying the self-identification and reporting requirements for EPA-initiated risk evaluation and test rule fees; expanding the fee requirements to companies required to submit information for test orders; and extending the timeframe for test order and test rule payments.
EPA consulted with several stakeholders that were potentially subject to fees, took public comment on the January 2021 proposed rule, and conducted a public webinar in February 2021 to inform the development of this supplemental proposal.
 
EPA will hold a public webinar on Tuesday, December 6, 2022, from 1-2:30 p.m. EST to provide an overview to stakeholders about the proposed rulemaking. The webinar will also give the public an opportunity to provide comment to EPA on the proposed changes. Register for the webinar.
 
EPA will accept public comments on the supplemental proposed rule until January 17, 2023 via docket EPA-HQ-OPPT-2020-0493 at www.regulations.gov.
 
New California Law Addresses Workplace Hazards at Public Events Venues
 
A bill signed into law by California Governor Gavin Newsom on Sept. 29 is intended to help ensure the safety of workers involved in the setup, operation, and tear down of live events held at public events venues in the state. The text of AB 1775 acknowledges that there is a history of accidents, injuries, and fatalities among these workers and states that many of these accidents have to do with lack of training and experience in safety protocols and best practices within this sector. The new law outlines requirements for safety training and certifications for entertainment events vendors—including contractor and subcontractor employers—involved in the setting up, operation, or tearing down of live events.
 
“These workers handle complex systems in all weather conditions, including excessive heat, rain, and windy conditions, working on rigging at great heights, and set up stages often on unknown surfaces, such as damp ground, sand, hot asphalt, and other unstable foundations,” the bill reads.
 
Under the new law, employees of entertainment events vendors involved in these activities must complete the Cal/OSHA-10, the OSHA-10/General Entertainment Safety, or the OSHA-10 training that applies to their occupation. Workers who are heads of departments or leads must complete the Cal/OSHA-30, the OSHA-30/General Entertainment Safety, or the OSHA-30 training. Department heads or leads must additionally be certified through the industry-wide Entertainment Technician Certification Program for the tasks they supervise or perform. The law also requires vendors to certify in writing that they have verified that all employees, including any subcontractors’ employees, meet these training and certification requirements.
 
The California Division of Occupational Safety and Health, or Cal/OSHA, will enforce the provisions of the new law. See the full text of the bill for more information.
 
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Environmental Resource Center’s live webcast training is the best way to learn how to comply with the latest regulations that apply to your site. Learn from the experts and get your site-specific questions answered at these upcoming sessions:
 
California Releases Final Proposal for World-Leading Climate Action Plan
 
The California Air Resources Board recently laid out the policies and actions California proposes to take to drastically reduce its dependence on fossil fuels and get to carbon neutrality by 2045 or earlier, following Governor Newsom’s call for more aggressive climate measures. The update to the scoping plan is unprecedented in scale and scope, representing the most aggressive approach to reach carbon neutrality by any jurisdiction in the world.
 
The achievable roadmap for the world’s fourth-largest economy proposes an unprecedented shift away from petroleum in every sector of the economy and a rapid transition to renewable energy resources and zero-emission vehicles. Under this proposal, by 2045 California would:
  • Cut greenhouse gas emissions by 85% below 1990 levels
  • 71% reduction in smog-forming air pollution
  • Reduce fossil fuel consumption (liquid petroleum) to less than one-tenth of what we use today – a 94% reduction in demand
  • Create 4 million new jobs
  • Save Californians $200 billion in health costs due to pollution in 2045
 
The plan’s aggressive transition away from fossil fuel combustion would benefit residents of the state’s most impacted communities who are disproportionately burdened by fossil fuel pollution. Additionally, in response to concerns raised by leaders from overburdened communities, including members of the Environmental Justice Advisory Committee, the 2022 Scoping Plan includes a commitment to build no new gas plants and increases support for mass transit. It also calls for a multi-agency process to ensure that the transition away from oil extraction and refining is equitable.
 
This plan delivers a massive reduction of climate-warming pollution, cutting it down to a fraction of what it is today. And by rapidly shifting away from all fossil fuels and then reaching carbon neutrality, the plan delivers public health benefits to everyone in California, most importantly to the communities suffering from persistent air pollution,” said CARB Chair Liane Randolph. “This plan clearly and unequivocally presents challenging and ambitious goals, but we simply have no other choice but to meet them – and do it in less than a quarter century. We all have experienced firsthand the impacts of climate change, whether wildfires, drought, record-breaking heat waves and more. Failure is not an option. There is too much at stake and we need to move as fast and as far as we can to lessen the worst impacts of climate change and leave future generations a livable and healthy California.”
 
Coupled with unprecedented state and federal investments, the actions in the plan would allow us to effectively and equitably build a better future for Californians through climate action.
 
Implementation of the plan would keep California on track to continue growing the economy and jobs, including green jobs tied to industries such as electric vehicle and zero-emission truck manufacturing that position California as a major competitor in the global clean-energy marketplace. Economic modeling indicates that, under the plan, California’s economy will reach $5.1 trillion by 2045 (from $3.2 today), with a related increase in 2045 of at least 4 million new jobs.
 
The CARB Board will vote on the 2022 Update to the Scoping Plan at its December 15-16 meeting. The initial draft of the plan was considered by the Board at its June meeting and with the Environmental Justice Advisory Committee in September. The final proposed plan includes changes requested by the Board and the EJAC, and guidance from Governor Newsom. It also reflects direction from new state laws passed by the Legislature this year.
 
As a result, the final modeling for the Scoping Plan shows increased ambition, projecting a 48% reduction of greenhouse gases below 1990 levels in 2030, surpassing our statutory mandate to reduced emissions 40% below 1990 levels in 2030. The updated modeling also includes 3 million climate-friendly homes by 2030 (and 7 million by 2035), 6 million heat pumps deployed by 2030, no new fossil gas capacity in the electricity sector, and 20 gigawatts of offshore wind capacity by 2045.
 
Additionally, the plan provides the Climate Vulnerability Metric, a new tool to identify communities especially vulnerable to harm from a changing climate and worsening air quality, ensuring that those communities’ public health and environmental concerns are front-and-center as the state moves ahead.
 
Settlements Resolve Clean Water Act Violations at Four Solar Farm Construction Sites
 
The Department of Justice and the EPA recently announced settlements with four separate solar farm owners to resolve alleged violations of the Clean Water Act. The alleged violations were construction permit violations and stormwater mismanagement at large-scale solar generating facilities: a site near LaFayette, Alabama, owned by AL Solar A, LLC (AL Solar); a site near American Falls, Idaho, owned by American Falls Solar, LLC (American Falls); a site in Perry County, Illinois, owned by Prairie State Solar, LLC (Prairie State); and a site in White County, Illinois, owned by Big River Solar, LLC (Big River). The states of Alabama and Illinois joined in the Alabama and Illinois settlements.
 
These four solar farm owners are all subsidiaries of large international finance and investment companies, and all four used a common construction contractor for the development of their solar farms. Together, the four settlements with these defendants secure a total of $1.34 million in civil penalties and ensure that remaining construction will take place in compliance with Clean Water Act stormwater permits. The settlements resolved claims alleged in four separate complaints the government also filed.
 
“While the development of renewable energy holds great promise for combatting climate change, the solar energy industry must comply with the Clean Water Act,” said Assistant Attorney General Todd Kim of the Justice Department’s Environment and Natural Resources Division. “The proposed settlements demonstrate the Department of Justice’s commitment to require those developing these facilities, including the site owners, to comply with the law, or be held accountable for construction practices that put our waterways at risk.”  
 
“The development of solar energy is a key component of this Administration’s efforts to combat climate change,” said Acting Assistant Administrator Larry Starfield of the EPA’s Office of Enforcement and Compliance Assurance. “These settlements send an important message to the site owners of solar farm projects that these facilities must be planned and built in compliance with all environmental laws, including those that prevent the discharge of sediment into local waters during construction.”
 
Solar farm construction involves clearing and grading large sections of land, which can lead to significant erosion and major runoff of sediment into waterways if stormwater controls at the site are inadequate. Increased sediment in waterways can injure, suffocate or kill aquatic life; damage aquatic ecosystems; and cause significant harm to drinking water treatment systems. To avoid these harms to the environment and public health, parties responsible for construction of solar farms are required to get construction stormwater permits under the Clean Water Act and comply with the terms of those permits. Each of the complaints filed allege that the owners of these four sites violated their construction stormwater permits in similar ways: failing to design, install, and maintain proper stormwater controls; failing to conduct regular site inspections; failing to employ qualified personnel to conduct inspections; and failing to accurately report and address stormwater issues at the site. The complaints filed against AL Solar and American Falls Solar also allege unauthorized discharges of excess sediment from their construction sites to nearby waterways.
 
Construction at the Idaho and Alabama sites is now complete and permit coverage has been terminated. Therefore, these settlements only include civil penalties. The United States and the Alabama Department of Environmental Management (ADEM) filed a stipulation of settlement with AL Solar in the U.S. District Court for the Middle District of Alabama along with its complaint. Under that settlement, AL Solar will pay a $250,000 civil penalty to the United States and a $250,000 civil penalty to ADEM. A second stipulation of settlement involving American Falls was filed in the U.S. District Court for the District of Idaho. Under that settlement, American Falls will pay a civil penalty of $416,500 to the United States. 
 
In addition, consent decrees with Prairie State and Big River were filed by the United States and the State of Illinois. Because both Illinois sites remain subject to Clean Water Act permits, these two settlements require the owners to ensure compliance with those permits until construction at the sites is complete and the United States and State agree that permit coverage can be terminated. In addition, Prairie State will pay a civil penalty of $157,500 to the United States and $67,500 to the state of Illinois, and Big River will pay a civil penalty of $122,500 to the United States and $52,500 to the state of Illinois. The consent decrees were lodged with the U.S. District Court for the Southern District of Illinois and are subject to a 30-day public comment period and final court approval.
 
The consent decrees can be viewed at the Department of Justice website here.
 
Alliance Building Corporation Fined $11,000 for Stormwater Violations
 
According to a Minnesota Pollution Control Agency (MPCA) enforcement investigation, Alliance Building Corporation failed to install measures required to stabilize soil, prevent erosion, and contain sediment at the Cardinal Pines II construction project near Staples, Minn. These construction stormwater violations can lead to excess sediment and other pollutants leaving a construction site and negatively impacting area wetlands, streams, or rivers.
 
In addition to paying an $11,000 civil penalty to the MPCA, Alliance Building Corporation completed a series of corrective actions, including:
  • Stabilized exposed areas of soil within the construction zone.
  • Installed strategies to minimize erosion and sediment runoff, including construction vehicles tracking soil from the site.
  • Conducted site inspections and kept required records.
 
The MPCA has cited the company, based in Sauk Rapids, Minn., for similar violations at various locations five other times since 2014.
 
MPCA rules and regulations are designed to protect human health and the environment by limiting pollution emissions and discharges from facilities. When companies do not fully comply with regulatory requirements, the resulting pollution can be harmful to people and the environment.
 
When calculating penalties, the MPCA takes into account how seriously the violations affected or could have affected the environment, and whether they were first-time or repeat violations. The agency also attempts to recover the economic benefit the company gained by failing to comply with environmental laws in a timely manner.
 
Erie Coke and Corporate Officer Indicted for Violating the Clean Air Act
 
Erie Coke Corporation, along with a corporate officer, have been indicted by a federal grand jury in Erie on among other charges, Violation of the Clean Air Act, United States Attorney Cindy K. Chung announced recently.
 
The eight-count Indictment, returned on Nov. 15, 2022, and unsealed recently, named Erie Coke Corporation, now permanently out of operation, and Anthony Nearhoof, 41, of Pittsburgh, Pennsylvania, as the defendants.
 
According to the Indictment presented to the court, from in and around October 2015 and continuing until in and around December 2019, Erie Coke Corporation and Nearhoof tampered with measurements on heating systems which emitted contaminants and pollutants into the air including volatile gases such as benzene, toluene, and xylene. Erie Coke Corporation was a plant regulated by federal and state statutes and regulations including the Clean Air Act (CAA) administered by the Environmental Protection Agency (EPA) and Pennsylvania Department of Environmental Protection (PADEP), which was located adjacent to numerous private residences, public facilities, and several schools.
 
Nearhoof was an operator and “responsible corporate officer” at the plant when hazardous air pollutants were being released and directed other plant supervisors and foremen to vent combustion gases directly into the air to avoid the plant’s environmental monitoring system.
 
“It is important to protect our community from environmental health hazards and to ensure equal access to a healthy environment in which to live, learn, and work,” said U.S. Attorney Chung. “This indictment demonstrates our ongoing commitment to securing environmental justice by holding Erie Coke Corporation and its management responsible for violations of laws meant to protect the environment and the community.”
 
The law provides for a maximum total sentence of not more than five years in prison, a fine of $250,000,00, and a term of supervised release of not more than three years. Under the Federal Sentencing Guidelines, the actual sentence imposed would be based upon the seriousness of the offense and the prior criminal history, if any, of the defendant.
 
EPA Settlement with Salem, Mass. Facility Achieves Better Protection from Risk of Chemical Accident
 
The EPA has reached a settlement with Excelitas Technologies Corp. of Salem, Mass., resolving an allegation the company violated the chemical accident prevention requirements of the federal Clean Air Act. A chemical accident at this facility could impact nearby densely populated communities, including areas with disproportionate environmental burdens.
 
"Today's action underscores the importance of the safe management of chemicals, and when a company like Excelitas does not comply with its safety obligations, it threatens the safety of our communities," said EPA New England Regional Administrator David W. Cash. "EPA's work is designed to protect all communities from chemical releases, and we have a special responsibility to reduce the burden of environmental pollution and risks of chemical accidents to the workers and residents of communities that have shouldered a greater share of these impacts."
 
The company has agreed to pay a civil penalty of $46,968 and has taken steps to improve safety at the facility. These steps are intended to prevent accidental releases of hazardous chemicals and to help keep facility workers and the community safer if accidental releases do occur. Excelitas designs and manufactures electro-optical components, high-energy switches, time frequency switches, high voltage conversion systems, and X-ray sources for a variety of industries.
 
The Excelitas facility is located in a mixed-use area of downtown Salem in a commercial/industrial building that houses medical offices, a deli, and other businesses. The building is within a third of a mile from downtown Salem attractions, including museums and restaurants. Anhydrous ammonia is one of several extremely hazardous materials the company stores and uses at the facility. Anhydrous ammonia is toxic and can be very dangerous when released into the environment. Additional extremely hazardous substances that the company stores and uses at the Facility include hydrogen gas, hydrofluoric acid, nitric acid, and potassium and copper cyanides.
 
An EPA inspection revealed that the company had not fully complied with its obligations under the Clean Air Act designed to protect public health, because it did not formally identify hazards which may result from chemical releases using appropriate hazard assessment techniques.
 
In the Clean Air Act Amendments of 1990, Congress enacted Section 112(r)(1), also known as the General Duty Clause. It applies to any facility where extremely hazardous substances are used or stored. Owners and operators have a general duty and responsibility to prevent and mitigate the consequences of chemical accidents. EPA inspects facilities across New England that are using extremely hazardous substances in their processes to make sure they are complying with requirements to prevent and prepare for accidental releases or spills. The Clean Air Act Amendments of 1990 also require that companies storing certain hazardous substances above threshold amounts comply with Risk Management Plan requirements to prevent accidental spills and releases.
 
More information on Section 112(r) of the Clean Air Act:
 
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