TSCA section 5(b)(4) ‘chemicals of concern’ list: questions, issues, concerns

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As part of efforts to enhance the Environmental Protection Agency’s chemical management program under the Toxic Substances Control Act,1 EPA has released a series of ‘‘action plans’’ on chemicals.2 These ‘‘CAPs,’’ as they have come to be called, summarize available hazard and exposure information pertinent to the CAP chemical, outline potential risks believed to be presented by the chemical, and identify steps EPA is taking to address the concerns raised.

Through April 2010, EPA has released action plans on five chemicals or chemical groups—phthalates; long chain perfluorinated chemicals; penta-, octa-, and decabromo diphenyl ethers (PBDEs) in products; shortchain chlorinated paraffins; and bisphenol A (BPA).

Three of the action plans (phthalates, PBDEs, and BPA) indicate EPA intends to add the chemicals to a ‘‘chemicals of concern’’ list that would be created using EPA’s authority under TSCA Section 5(b)(4)(A)(i). EPA noted in its April 26, 2010, Regulatory Agenda that it intends to publish in September 2010 a proposed rule adding a category of eight phthalates, a category of PBDEs, and BPA to a Section 5(b)(4) list.3

Although EPA expressed interest in using this authority during President George W. Bush’s administration, the provision has never been used over the 34 years of TSCA’s existence. This paper explores EPA’s authority under TSCA Section 5(b)(4) to create a ‘‘chemicals of concern’’ list and discusses legal and policy issues that may arise in its implementation.

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