This alert was originally published on December 4, 2024, and has been revised based on recent developments.
With the election of Donald Trump, the implementation of the Toxic Substances Control Act (TSCA) in 2025 will differ significantly from the pre-election expectations. Here are our projections on the likely developments in the coming year.
Summary
- EPA will continue to implement TSCA, so companies must continue focusing on their TSCA obligations.
- TSCA legislation is coming, at least with respect to fee authority and appropriations.
- Personnel and staffing changes will affect TSCA implementation.
- Policy changes, such as those recommended in Project 2025, are likely.
- The Trump EPA will try to expedite new chemical reviews, but reduced resources will make that challenging.
- EPA will continue to issue significant new use rules.
- The Trump EPA may not prioritize all the chemicals proposed for designation by the Biden EPA.
- The Biden EPA risk evaluations will be reconsidered, but the Trump EPA will have to deal with a consent decree mandating deadlines for completion of those risk evaluations.
- Pending risk management rules will likely be revised.
- The final risk management rules under judicial review will be remanded for reconsideration.
- EPA may face reductions in TSCA fees.
- Staying abreast of developments in 2025 will be important.
March 2025 Update
Expect significant changes to the TSCA program under the Trump EPA relatively soon. To date, however, EPA has suggested that it may revise many of the TSCA actions taken by the Biden EPA, while delaying definitive announcements of changes. Exceptions include EPA’s cutting employees and announcing that it will reconsider the TSCA risk evaluation framework rule, which will likely affect future, in-progress, and possibly completed risk evaluations.
1. TSCA Implementation Will Continue
December 2024 Report
TSCA and its obligations are not going away. The 2016 amendments imposed requirements on the U.S. Environmental Protection Agency (EPA) that only Congress can alter. Further, EPA has adopted regulations that implement those amendments. Most of these can only be changed by notice-and-comment rulemaking, which can take years.
This means, for example, that manufacture of a chemical substance that is not on the TSCA Inventory and not covered by an exemption will still be prohibited under section 5(a)(1) until EPA completes the premanufacture notice (PMN) process for that substance. Until EPA completes the significant new use notice (SNUN) review process for a substance, engagement in significant new uses under a significant new use rule (SNUR) will also still be prohibited under section 5(a)(1). Risk evaluations and rulemaking under section 6 will continue, thanks to the statutory deadlines in section 6(b)(4)(G) for completing risk evaluations and 6(c)(1) for risk management rules after completing risk evaluations. EPA is currently working on risk evaluations for some 20 high-priority or manufacturer-requested substances; all must be completed. As both the first Trump EPA and the Biden EPA did, the incoming EPA may miss those deadlines – but work will continue because TSCA requires this. Reports for the PFAS Reporting Rule, mandated by section 8(a)(7), will still be due by January 11, 2026, unless the Trump EPA grants further extensions through rulemaking.
Companies will still need to staff their organizations in order to meet their TSCA obligations. They will also need to stay alert for changes in those obligations that the Trump EPA may adopt.
March 2025 Update
The Trump EPA has proceeded relatively slowly to make significant changes to TSCA, perhaps because no one has been nominated or confirmed for the post of Assistant Administrator for the Office of Chemical Safety and Pollution Prevention (OCSPP).
Of note, EPA Administrator Zeldin’s March 12 announcement of 31 deregulatory actions that EPA plans to take did not identify any TSCA-related actions.
Most activities to date have postponed actions under TSCA, except for EPA’s announced intention to revise the risk evaluation framework rule. These actions are described below.
2. TSCA Legislation Is Coming
December 2024 Report
Under TSCA section 26(b)(6), EPA’s authority to collect fees to support the TSCA program expires on June 22, 2026. Thus, Congressional action on fees will be the subject of legislation in the 119th Congress, with bills likely to be introduced in 2025.
Republicans will control both houses of Congress, as well as the presidency. This will make amending TSCA, such as revising aspects of the 2016 amendments, more feasible than in the past administrations.
Amending the statute may also be attractive to Congressional Republicans in light of the Supreme Court’s June 2024 Loper Bright decision. Potential administrative changes would not receive judicial deference. One example is the Biden EPA’s policy of reading section 6(b)(4) to require a single risk determination for the chemical substance as a whole, rather than on the basis of individual conditions of use as under the first Trump EPA. To avoid the potential for a subsequent administration embracing the Biden EPA interpretations again, Congressional Republicans may want to cement their readings of TSCA through enacting legislation.
On the other hand, it is important to recognize that the 2016 amendments resulted from seven years of active legislative consideration. They incorporated many compromises. Fundamentally altering them could be difficult. Democrats (supported by NGOs) may seek their own amendments to further strengthen EPA’s authority. Senate Democrats would have the option of a filibuster, requiring 60 votes to proceed – a high barrier. Thus, amendments of TSCA other than renewal or modification of the fees provision are by no means certain.
More likely are restrictions on the use of EPA appropriations. For example, the July 11, 2024 House Appropriations Committee report on the bill to fund EPA and other agencies called for riders prohibiting the expenditure of funds to adopt worker exposure limits under section 6 that did not meet prescribed criteria.
Appropriations for the TSCA program, as part of EPA’s appropriations, will likely continue under a continuing resolution until the Republican Congress can enact appropriations for FY 2025. That appropriation will almost certainly cut TSCA funding. The House Appropriations Committee report recommended $2.25 billion for Environmental Programs and Management (which include TSCA program), down 29% from the FY 2024 appropriation of $3.18 billion.
March 2025 Update
On January 22, 2025, the Environment Subcommittee of the House Energy and Commerce Committee held an oversight hearing on implementation of the 2016 TSCA amendments. One industry witness called for relatively limited changes to TSCA related to the standard for review for new chemicals. The American Chemistry Council President called for implementation changes but added, “let me be clear – I am not talking about ‘opening up’ TSCA again.”
Since the hearing, no bills have been introduced. However, discussion drafts for possible TSCA legislation are said to be under development in both the House Energy and Commerce Committee and the Senate Environment and Public Works Committee.
The Full-Year Continuing Appropriations and Extension Act, 2025, Public Law 119-4 (the Continuing Resolution signed by President Trump on March 15, 2025) increased EPA’s appropriation for environmental programs and management by $17 million over the appropriation for Fiscal Year 2024, to $3.195 billion. According to a House Appropriations Committee report, the purpose of the increase is “to modernize the Environmental Protection Agency’s IT system to more efficiently complete chemical reviews, as requested by the Administration.” The extra money may help EPA be able to handle the expected influx of reporting under the PFAS reporting rule, 40 C.F.R. Part 705. Last year, the Biden EPA postponed the reporting period for that rule by eight months, explaining that it was “compelled to take this action in response to constraints on the timely development and testing of the software being developed to collect information pursuant to this reporting rule (i.e., the rule’s reporting application).”
3. Personnel and Staffing Changes Will Affect TSCA Implementation
December 2024 Report
It is a given that the political appointees at EPA will change after January 20, 2025, starting at the top.
EPA Administrator-designate Lee Zeldin is a former Republican Congressman from Long Island, NY, and a long-time Trump ally. While he had been a member of the Climate Solutions Caucus and Conservative Climate Caucus, he was not a member of the House Energy and Commerce Committee, which has jurisdiction over EPA. EPA is in the crosshairs of Republican strategists for substantially cutting regulations and resources. Accordingly, Zeldin will arrive with a mandate to make big changes. TSCA, however, is low on the list, with air and water requirements being the top priorities.
Assistant Administrator Michal Freedhoff, who helped draft the 2016 amendments and who has greatly impacted their implementation under the Biden EPA, will depart. At this point, no successor to lead the Office of Chemical Safety and Pollution Prevention (OCSPP) has been named. Whoever it is, that person will have a mandate to take a fresh look at the implementation of TSCA.
It is foreseeable that some career EPA staff in OCSPP will choose to retire or be forced out in headcount reductions. Preliminary indications are that headcount reductions across EPA will be steep. Such reductions would handicap the processing of section 5 notices and the development of risk evaluations and risk management rules.
March 2025 Update
While no one has been nominated to become the Assistant Administrator for OCSPP, two positions not requiring Senate confirmation have been filled: Nancy Beck is the Principal Deputy Assistant Administrator for OCSPP, and Lynn Dekleva is the Deputy Assistant Administrator for OCSPP.
EPA Administrator Zeldin has announced plans to cut EPA’s total spending by 65%, although without specifying the impact on TSCA-related spending. None of the 31 deregulatory actions he announced on March 31 involve TSCA.
According to press reports, planned cuts include up to 75% of the staff of the Office of Research and Development (ORD). Further, apparently hundreds of EPA probationary employees were terminated in February, with some of those terminations being later rescinded Many of the reinstated employees are said to have been placed on administrative leave. There is no clarity on the extent to which OCSPP employees have been affected.
4. Policy Changes Are Coming
December 2024 Report
The second Trump EPA will plan to reorient the Biden EPA’s approach to TSCA, in part by returning to the policies of the first Trump EPA, and likely by introducing new changes. Insights into that reorientation may be found in the EPA chapter of Project 2025 and the House Appropriations Committee report. Their recommendations include:
- Developing an improvement plan for new chemical reviews and revising the applicable regulations to expedite the review process.
- Ensuring that risk evaluations are risk-based, rather than relying on hazard-based approaches like the Integrated Risk Information System (IRIS).
- Focusing risk evaluations on exposure pathways not covered by other environmental statutes.
- Applying real-world use of chemicals when assessing conditions of use for risk evaluations.
- Revising the proposed framework rule for risk evaluations (since finalized) to assume that workers are using OSHA-required personal protective equipment (PPE) and to maintain the definitions of ‘‘best available science’’ and ‘‘weight of scientific evidence.’’
- Developing a framework rule for risk management rulemaking.
- Limiting TSCA’s fees rule so that it does not cover the costs of EPA inefficiency or overreach.
Notably, PFAS is not mentioned in either source with respect to TSCA, but it is likely to remain an important topic. During the first Trump Administration, EPA issued its first PFAS Action Plan (February 2019) and reported on “significant progress” under that plan (January 2021). When in Congress, Lee Zeldin was a member of the Congressional PFAS task force and was one of 23 Republicans to support Rep. Debbie Dingell’s PFAS Action Act of 2021 (H.R. 2467). It would have directed EPA to set aggressive drinking water standards for at least PFOA and PFOS and to designate them as hazardous substances under CERCLA, actions later taken by the Biden EPA (those actions may be vulnerable under the new administration).
March 2025 Update
EPA announced its first significant TSCA action on March 10, 2025: it plans to reconsider the entire risk evaluation framework rule, 40 C.F.R. Part 702, Subpart B, through notice-and-comment rulemaking. See our alert here. The issues identified in the announcement suggest that the second Trump EPA may plan to reject the 2024 amendments adopted by the Biden EPA and, potentially, return to the original version adopted by the first Trump EPA in 2017.
The Biden EPA began implementing its changes to conducting risk evaluations well before completing its rulemaking to amend the original version of the rule. The March 10 announcement likely means that the second Trump EPA will do the same – implement the policy changes suggested in the announcement immediately for ongoing and future risk evaluations even before proposing amendments to the rule.
Still to be determined is whether the Trump EPA will revise the risk evaluations completed or revised by the Biden EPA, such as the one for formaldehyde. Some in industry have advocated for that risk evaluation in particular to be reopened. Any revision of completed or in-progress Biden EPA risk evaluations will have to deal with the judicial consent decree setting deadlines for completing risk evaluations, including a December 2024 deadline for the formaldehyde risk evaluation.
The expected layoffs at ORD may effectively terminate the Integrated Risk Information System (IRIS) program. ORD has produced IRIS risk assessments of chemicals that industry has criticized but which the Biden EPA had relied on, including in the formaldehyde risk evaluation. Of note, bills to prohibit EPA reliance on IRIS assessments have been reintroduced in the House and Senate.
5. New Chemical Reviews May Be Quicker (But No Guarantees)
December 2024 Report
Under the Biden administration, EPA has blamed its delays in review of PMNs and SNUNs on inadequate funding. As noted above, the Republican Congress will likely cut EPA funding rather than increase it. The New Chemicals Program, along with other TSCA programs, will have to make do with less. This will further slow the processing of PMNs, SNUNs, and exemption applications.
Subject to those resource constraints, expect the second Trump EPA to try to process section 5 notices more quickly. The first Trump EPA made risk determinations for 1,193 notices (604 “presents” or “may present” determinations and 589 “not likely to present” determinations) from the enactment of the 2016 amendments through the end of fiscal year (FY) 2020. Since then, EPA has made less than half that number of risk determinations. From FY 2021 (including the last 3½ months of the Trump administration) through FY 2025 to date, EPA made only 557 risk determinations (384 “presents” or “may present” determinations and 173 “not likely to present” determinations). During that time, the proportion of determinations resulting in restrictions rose from around 50% to around 69%. See PMN statistics as of November 1, 2024, here. The second Trump EPA will probably be less precautionary in its risk determinations, which should speed up the review process.
To process section 5 notices more efficiently, in May 2023, the Biden EPA proposed changes to its section 5 regulations. The draft final regulations have been under review at the Office of Management and Budget (OMB) since May 2024. If finalized but not published in the Federal Register before Inauguration Day, the new administration would certainly pull those regulations back for review. If published but not yet effective, they would be covered by a 60-day freeze. However, some form of those regulations will likely become effective since they are intended to reduce the time needed by EPA to review new chemical notices.
March 2025 Update
The Biden EPA’s final rule amending the section 5 regulations was published December 18, 2024. Its January 17, 2025 effective date excluded it from the scope of the regulatory freeze memorandum issued on January 20, 2025. Petitions for judicial review of the rule have been consolidated in the Ninth Circuit, with the lead case being Alaska Community Action on Toxics v. EPA, No. 25-158. At EPA’s request, the case is in abeyance until June 11, 2025, to allow the Trump EPA time to evaluate its position on the litigation.
The rule is also the subject of House Joint Resolution 76, a resolution under the Congressional Review Act to provide for congressional disapproval of the rule. The resolution, introduced on March 11, 2025, has been referred to the House Energy and Commerce Committee.
The industry witnesses at the January 22, 2025, congressional subcommittee hearing referred to above called for improved implementation of the New Chemicals Program. Layoffs of New Chemicals Program employees would reduce EPA’s ability to process new chemical notices more expeditiously, although it is not clear to what extent layoffs have occurred in that program.
Also on January 20, 2025, the Government Accountability Office issued a report, “New Chemicals Program – EPA Needs a Systematic Process to Better Manage and Assess Performance.” The Biden EPA’s response to the report, included in an appendix, agreed with some recommendations made in the report, noted improvements made in recent years, but cautioned that without a significant budget increase, substantial progress would be extremely difficult.
According to EPA statistics, in February 2025 (the first full month of the Trump Administration), the New Chemicals Program completed 45 risk assessments and 25 risk management actions, and it had 15 section 5(e) orders awaiting signature by the submitter. For comparison, in each of the last full three months of the Biden Administration, the New Chemicals Program completed an average of 43 risk assessments and 31 risk management actions, and it had an average of 8 section 5(e) orders awaiting signature by the submitter.
6. EPA Will Continue to Adopt Significant New Use Rules
December 2024 Report
EPA will continue to propose and then adopt new SNURs. Section 5(f)(4) requires EPA to consider SNUR rulemaking for section 5 chemical substances for which it makes a “presents” or “may present” risk determination. EPA must then either initiate that rulemaking or publish a Federal Register notice explaining why it should not be initiated. Generally, PMN submitters support SNUR rulemaking for their restricted substances since SNURs apply their restrictions to others, thus leveling the playing field.
Recipients of section 5(e) orders with limitations on distribution in commerce have a further reason for supporting the promulgation of SNURs for their substances. Those limitations usually prevent distribution beyond the immediate customer until after a SNUR becomes final, resulting in potentially years of inability to market the substance broadly.
March 2025 Update
EPA has not published any proposed or final SNURs since the January 20 inauguration.
The Biden EPA published final SNURs two weeks before the January 20 inauguration, all with an effective date of March 7, 2025. This included them within the scope of the regulatory freeze memorandum, but the Trump EPA did not extend that effective date. They are now in effect.
7. Prioritization May Slow
December 2024 Report
In July 2024, the Biden EPA proposed to designate five chemicals as high-priority substances (acetaldehyde, acrylonitrile, benzenamine, vinyl chloride, and MBOCA). Since the prioritization process must take 9-12 months, by July 2025, the Trump EPA may designate some or all of them as high-priority substances – or it may not.
Under section 6(b)(3)(C), after designating the initial 20 high-priority substances (which happened in 2019), EPA must continue to designate high-priority substances “at a pace consistent with the ability of the Administrator to complete risk evaluations in accordance with the deadlines” (3 to 3½ years after designation). Given that both the first Trump EPA and the Biden EPA exceeded those deadlines with their risk evaluations, the second Trump EPA may decide not to designate new high-priority substances at that time.
March 2025 Update
On December 18, 2024, the Biden EPA officially designated as high-priority substances for risk evaluations the five chemicals that it had proposed in July 2024. That same day it also initiated the prioritization process for another five substances – 4-tert-octylphenol, benzene, ethylbenzene, naphthalene, and styrene.
On December 13, 2024, the Biden EPA published a final rule under section 8(d) requiring the submission of health and safety studies on those ten chemicals and six others. The rule’s preamble said that submission of the studies would assist EPA with prioritization, risk evaluations, and risk management of those chemicals. Studies were required to be submitted to EPA by March 14, 2025.
The day before the original submission deadline, on March 13, the Trump EPA extended the compliance deadline for the section 8(d) rule in response to industry requests. The deadline was extended to June 11, 2025 for vinyl chloride, and to September 9, 2025 for the other 15 chemicals.
8. Biden EPA Risk Evaluations May Be Reconsidered
December 2024 Report
Early in the Biden administration, EPA announced that it planned to reconsider the Trump EPA’s risk evaluations of the initial 10 chemical substances. The same thing may happen with respect to the Biden EPA’s risk evaluations.
So far, the Biden EPA has completed supplemental risk evaluations for two of the initial 10 substances (1,4-dioxane and legacy uses of asbestos) and a risk evaluation for one of the 20 high-priority substances (TCEP).It has issued proposed risk evaluations for formaldehyde, DIDP, DINP, 1,3-butadiene, and 1,1-dichloroethane, and released a draft human health hazard assessment for 1,2-dichloroethane. These and the other pending risk evaluations incorporate or are expected to incorporate the “whole chemical” approach and reject the assumption that workers wear OSHA-required PPE. They consider or are expected to consider exposure pathways for which other EPA offices administer media-specific statutes. Both the Project 2025 EPA chapter and the House Appropriations Committee report called for the abandonment of those policies.
Reconsideration is not certain, however. In a late development, EPA is now subject to a November 22, 2024 consent decree obligating it to complete three risk evaluations for high-priority substances in 2024 (TCEP (already final), formaldehyde, and 1,1-dichloroethane); 7 additional ones in 2025 (including 1,3-butadiene); and the other ten by the end of 2026. Under a related consent decree, EPA must complete risk evaluations for two manufacturer-requested substances (DIDP and DINP) by January 2025.
Once the second Trump EPA publishes final risk evaluations without a “whole chemical” approach, NGOs are expected to seek judicial review of any section 6(i)(1) orders finding that particular conditions of use do not present an unreasonable risk. That is what happened following the publication of final risk evaluations by the first Trump EPA.
March 2025 Update
The Trump EPA has not announced that it intends to reconsider any of the Biden EPA risk evaluations. The announcement that it plans to reconsider the risk evaluation framework rule (see section 4 above) may signal that it plans to reconsider at least some of those risk evaluations, as does the plan to cut most staff from ORD.
EPA has extended or reopened comment deadlines for draft risk evaluation documents related to 1,3-butadiene, vinyl chloride, and DCHP. It has also scheduled meetings related to the draft risk evaluation for 1,3-butadiene.
On March 4, 2025, EPA has asked a court to extend by 60 days the deadlines for two draft risk evaluations (unspecified) and the final risk evaluation for 1,1-dichloroethane. Those and other risk evaluations are subject to a consent decree in the case Community In-Power And Development Association, Inc. v. EPA, No. 1:23-cv-02715-DLF (D.D.C.). The motion advised that the new EPA leadership needed the time “ to familiarize themselves with EPA’s ongoing efforts to prepare risk evaluations under [TSCA], so that they may make necessary policy decisions to issue the risk evaluations.” The court granted the extensions on March 7. The reference to “policy decisions” suggests that the Trump EPA may decide to revise the current drafts.
9. Pending TSCA Risk Management Rules Will Be Reconsidered
December 2024 Report
EPA recently published in the Federal Register a final rule amending its regulations on two persistent, bioaccumulative, and persistent substances (PBTs), decaBDE and PIP (3:1), effective January 21, 2025. As is common during presidential transitions, the Trump administration is expected to freeze this and other finalized but not-yet-effective federal agency rules on January 20. On day one of the first Trump administration, the new President’s office issued a regulatory freeze memorandum that postponed by 60 days the effective dates of regulations published in the Federal Register but that had not yet taken effect. That memorandum also directed agencies to propose a rule to delay effective dates beyond this 60-day period and consider further action in coordination with OMB “for regulations that raise substantial questions of law or policy.” However, since the PBT amendments extended the October 31, 2024 compliance deadline for several uses of PIP (3:1), that rule (or parts of it) may be allowed to take effect after the freeze ends.
The Biden EPA may finalize additional TSCA rules prior to Inauguration Day (January 20) that are currently under review by the Office of Information and Regulatory Affairs (OIRA) in OMB. They include draft final risk management rules on:
- Perchloroethylene (proposed in June 2023, under review since May 2024)
- Carbon tetrachloride (proposed in July 2023, under review since July 2024)
- Trichloroethylene (proposed in October 2023), under review since July 2024)
If published in the Federal Register prior to Inauguration Day, they too will likely be subject to the anticipated freeze. If not published in the Federal Register by then, the Trump EPA can simply pull them back.
The other two Biden EPA proposed risk management rules, on n-methylpyrrolidone (proposed in June 2024) and 1-bromopropane (proposed in August 2024), will certainly be reconsidered prior to being finalized.
All five proposed rules would impose OSHA-type restrictions in a Workplace Chemical Protection Program (WCPP). The House Appropriations Committee report called for EPA to consider asking OSHA under section 9(a) to enact worker protection requirements instead of EPA doing so. If not, the report advised EPA to take several steps before adopting an occupational exposure limit. The EPA chapter of Project 2025 called for EPA to assume that employers comply with OSHA’s PPE standards (and thus may not need supplemental PPE requirements). In light of those recommendations, the Trump EPA may revise those rules significantly prior to finalization.
Once they become final, all the risk management rules will likely be challenged on judicial review. That may not happen in 2025, however, if the extent of changes means that supplemental proposed rules will be needed before the Trump EPA can promulgate final rules.
March 2025 Update
The Biden EPA published a final rule for trichloroethylene on December 17, 2024, with an effective date of January 16, 2025. On December 18, 2024, it published final rules for carbon tetrachloride and perchloroethylene, each with an effective date of January 17, 2025. Those effective dates were expected to keep all three rules outside the reach of the January 20 regulatory freeze memorandum.
However, the trichloroethylene rule did not take effect as scheduled. Like the other two rules, it was challenged on judicial review. On January 13, 2025, the Fifth Circuit granted a petitioner's motion to temporarily stay the rule's effective date. After transfer of the case to the Third Circuit, that court left the temporary stay of the effective date in place pending briefing on whether the temporary stay of the effective date should remain in effect. Because of the decisions of the Fifth and Third Circuits, the rule was fell within the scope of the regulatory freeze memorandum issued by the Trump administration on January 20, 2025. On January 28, 2025, the Trump EPA delayed the effective date of the trichloroethylene rule until March 21, 2025 “for the purpose of reviewing any questions of fact, law, and policy that the rule[] may raise.”
On March 21, 2025, EPA asked the Third Circuit to extend all litigation deadlines in the case for an additional 60 days, saying “EPA’s new leadership is continuing to evaluate the provisions of the Rule at issue in the stay motions.” EPA also released a prepublication version of a Federal Register notice announcing “a 90-day postponement of the effective date (i.e., until June 20, 2025) of the conditions for each of the TSCA section 6(g) exemptions.” The postponement applies the conditions imposed under the section 6(g) exemptions for the use of trichloroethylene in lead-acid battery separator manufacturing and industrial and commercial use of trichloroethylene as a processing aid for specialty polymeric microporous sheet materials manufacturing.
The effective date for the final rules on decaBDE and PIP (3:1), published on November 19, 2024, was not delayed. Those rules took effect on January 21, 2025 as scheduled.
The Trump EPA has not announced any actions on the proposed rules for n-methyl pyrrolidone or 1-bromopropane.
The Biden EPA published a proposed rule for C.I. pigment violet 29 on January 14, 2025. On March 4, 2025, the Trump EPA reopened the comment period on the proposed rule until April 29, 2025.
10. Final TSCA Rules Under Judicial Review Will Be Remanded
December 2024 Report
Three final TSCA section 6 rules, all published in the first half of 2024 and thus beyond the reach of the Congressional Review Act, are under judicial review. They include the asbestos and methylene chloride risk management rule cases in the Fifth Circuit and the risk evaluation framework rule case in the D.C. Circuit. None of those cases have been scheduled for oral argument, so they are unlikely to be resolved prior to Inauguration Day. The Trump Justice Department will likely move for voluntary remand so the Trump EPA can reconsider those rules. The courts are likely to grant the motions.
Those cases include challenges to the “whole chemical” approach and the PPE assumptions of the Biden EPA risk evaluations. Rather than allow courts to decide the legality of those issues, the second Trump EPA is likely to prefer to have the opportunity to revise the rules to follow the approaches and assumptions of the first Trump EPA. Look for each of them to be reconsidered starting in 2025.
Notice-and-comment rulemaking will be required to effectuate any changes. Expect NGOs and others to challenge the revisions on judicial review.
March 2025 Update
The rules on asbestos, methylene chloride, perchloroethylene, trichloroethylene, and carbon tetrachloride are under judicial review. In each of these cases, EPA has asked the court to hold the case in abeyance while the new administration reviews the rule and considers what action, if any, is necessary. The lead cases are:
- Asbestos - Texas Chemical Council v. EPA, No. 24-60193 (5th Cir).
- Methylene chloride - East Fork Enterprises, Inc. v. EPA, No. 24-60227 (5th Cir.)
- Perchloroethylene - FabriClean Supply v. EPA, No. 25-60006 (5th Cir.)
- Trichloroethylene - United Steel Paper and Forestry Rubber Manufacturing Energy Allied Industrial and Service Workers International Union AFL CIO v. EPA, No. 25-1055 (3d Cir.)
- Carbon tetrachloride - Olin Corp. v. EPA, No. 25-1014 (8th Cir.)
The courts have granted the motions for abeyance or delayed all deadlines for 60-120 days in the cases involving asbestos, trichloroethylene, and perchloroethylene. The stay in the trichloroethylene case expires on March 28. The court in the carbon tetrachloride case has not yet ruled on the motion. The court in the methylene chloride case initially granted the motion, then withdrew its order and set deadlines for briefing. It directed EPA to advise the court immediately “if the EPA takes a revised position regarding the underlying rule, as a result of new agency leadership.” To date, in none of these cases has EPA notified the court of a change in position.
Notwithstanding the delays in court proceedings, the underlying rules remain in effect. Some of their compliance deadlines have already arrived or will arrive shortly:
- Asbestos –May 28, 2024 and November 25, 2024 for certain ban provisions; November 25, 2024 for certain workplace restrictions.
- Methylene chloride – February 3, 2025 and May 5, 2025 for certain ban provisions; May 5, 2025 for certain workplace restrictions; October 7, 2024 and December 4, 2024 for certain downstream notification provisions.
- Perchloroethylene – June 16, 2025 for a certain ban provision; December 15, 2025 for certain workplace restrictions; February 18, 2025 and June 16, 2025 for certain downstream notification provisions.
- Trichloroethylene – March 17, 2025 and June 16, 2025 for certain ban provisions; June 16, 2025 for certain workplace restrictions; February 18, 2025 and June 16, 2025 for certain downstream notification provisions. Note: Although the rule did not take effect until March 21, 2025, its compliance deadlines are not tied to the effective date. Compliance dates prior to March 21 were not enforceable, but, presumably, they are now, except to the extent that EPA extends the compliance deadlines for two section 6(g) exemptions.
- Carbon tetrachloride – June 16 for certain ban provisions; June 16, 2025 for certain workplace restrictions; and February 18, 2025 and June 16, 2025 for certain downstream notification provisions.
11. EPA May Face Reduced Fee Payments
December 2024 Report
The EPA chapter of Project 2025 called for changes to “right-size the TSCA fees rule so that it is consistent with the tasks that the agency is actually completing within the timelines of the statute and is not covering the costs of EPA inefficiency or overreach.” Those changes could come administratively or through legislation.
The current TSCA fees rule, published in February 2024, established fees for FY 2024 through FY 2026. Rulemaking to revise the rule could begin in 2025.
The 2016 TSCA amendments increased EPA’s ability to collect fees under section 26(b) for a period of 10 years. That authority expires in June 2026. Thus, legislation to reauthorize fees is expected in 2025, as mentioned above. That legislation may seek to impose conditions on EPA’s rules setting fees.
The bottom line is that the TSCA program may face both reduced appropriations and reduced fees in the coming years.
March 2025 Update
Manufacturers of five recently-designated high-priority substances were required to self-identify to EPA by March 3, 2025 for purposes of calculating fees to cover 25% of EPA’s costs for conducting those five risk evaluations. The fee for each risk evaluation is $4,287,000, to be shared among the manufacturers of each chemical, per 40 C.F.R. § 700.45.
12. Stay Alert for TSCA Developments
December 2024 Report
Much remains unclear at this point about how the Trump EPA will implement TSCA in 2025. What is clear is that companies in all industries potentially face new or changed TSCA requirements to be developed or finalized in 2025 and the following years. It will be necessary for companies to maintain or improve their current TSCA compliance programs; monitor regulatory and legislative developments; advocate for or against proposed changes (directly or through their trade associations); and be prepared to implement appropriate changes to their programs.
Beveridge & Diamond has served as a trusted partner in TSCA compliance and advocacy for many years. We will continue doing so in 2025 and beyond.
March 2025 Update
Uncertainty remains, but clear signs of significant changes to the TSCA program to come are already apparent. When they happen, the changes are likely to be fairly rapid. Continued attention to developments will be important.
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