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The Toxic Substances Control Act
(TSCA) of 1976 provides EPA with authority to require reporting, record-keeping and testing requirements, and restrictions relating to chemical substances and/or mixtures. Certain substances are generally excluded from TSCA, including, among others, food, drugs, cometics and pesticides.
Federal Facility Responsibilities Under the TSCA Include:
- Maintaining records required by EPA under TSCA
- Submitting reports, notices, or other information required by EPA under TSCA
- Permitting access to, or copying of, records required under TSCA
- Permitting entry or inspection of facilities required under TSCA
- Marking and labeling of certain polychlorinated biphenyls (PCBs) and PCB-containing equipment
- Properly storing, packaging, importing, and disposing of PCBs and PCB-containing equipment
- Preparing and maintaining annual document logs for facilities managing over 45 kilograms or 99.4 pounds of PCBs, one or more PCB transformers, or 50 or more PCB large high- or low- voltage capacitors
- Preparing and maintaining PCB disposal manifests, certificates of destruction, and exception reports
- Complying with minimum training standards for personnel engaged in asbestos abatement activities as established in EPA's Model Accreditation Plan
- Conducting lead-based paint abatement activities in most pre-1978 housing and "child-occupied facilities", such as child-care facilities and pre-schools, with properly trained and certified contractors in conformance with documented methodologies appropriate to lead-based paint activities
- Conducting renovation, repair and painting (RRP) activities at pre-1978 housing/pre-1978 child-occupied facilities using certified firms with personnel trained by EPA-approved training providers and using lead-safe work practices
- Measuring radon levels within buildings and mitigating unsafe exposure
- Providing disclosure at time of sale or lease of residential properties built before 1978
- Provide a lead hazard information pamphlet to the occupier of federally owned property prior to renovation
- Complying with minimum training standards for personnel engaged in asbestos abatement activities as established in EPA's Model Accreditation Plan
- Implementing the Asbestos Hazard Emergency Response Act (AHERA) requirements in schools operated by the Department of Defense, pursuant to §203(l) of AHERA
- Ensuring that K-12 schools owned/operated by U.S. Government meet AHERA compliance requirements (e.g., K-12 schools owned/operated by Bureau of Indian Affairs/Bureau of Indian Education/DOI)
- Conducting inventory and assessment of asbestos-containing material at facilities subject to AHERA, and
- Properly handling, storing, transporting, and disposing of asbestos-containing materials (Clean Air Act also mandates proper management of asbestos-containing materials under 40 C.F.R. 61.140 (40 C.F.R. 61, Subpart M), National Emission Standards for Hazardous Air Pollutants – Asbestos).
- Measuring radon levels within buildings and mitigating unsafe exposure
Basics of Statute
The Toxic Substances Control Act (TSCA) became law on October 11, 1976, and became effective on January 1, 1977.
The Act authorized EPA to secure information on all new and existing chemical substances, as well as to control any of the substances that were determined to cause unreasonable risk to public health or the environment. Congress later added additional titles to the Act, with this original part designated at Title I - Control of Hazardous Substances.
Current Titles of TSCA include:
- Title I – Control of Toxic Substances
- Title II – Asbestos Hazard Emergency Response
- Title III – Indoor Radon Abatement
- Title IV – Lead Exposure Reduction
- Title V - Healthy High-Performance Schools
- Title VI - Formaldehyde Standards for Composite Wood Products
TSCA regulatory authority and program implementation rests predominantly with the Federal government (EPA). However, States can be authorized by EPA to operate their own, EPA-authorized programs for some portions of the statute. TSCA Title IV allows States the flexibility to develop accreditation and certification programs and work practice standards for lead-related inspection, risk assessment, renovation, and abatement that are at least as protective as existing Federal standards.
TSCA does not explicitly address the role of Tribes in implementing the statute's programs. However, EPA has exercised its discretion under TSCA to provide opportunities for eligible Tribes to administer certain programs in the same manner as states and apply for grants. For instance, federally recognized Indian Tribes, tribal consortia, and Alaska Native Villages can apply for TSCA grants. Eligible Tribes may also apply for certain authorizations in the same manner as states.
TSCA protects human health and the environment by, among other things, authorizing EPA to issue rules requiring the testing of specific chemicals and to establish regulations that restrict the manufacturing, processing, distribution in commerce, use and disposal of chemicals and mixtures. TSCA authorizes EPA to:
- Gather basic information on chemical risks from chemical manufacturers and processors
- Require companies to test chemicals and mixtures for toxic effects
- Review most new chemicals before they are manufactured
- Prevent unreasonable risks by regulating chemicals and mixtures, ranging from hazard warning labels to the outright ban on the manufacture, processing, distribution in commerce or use of certain chemicals and mixtures.
The control actions EPA can take under TSCA are comprehensive and cover the manufacture, use, processing, distribution in commerce, and disposal of chemical substances and mixtures.
Six chemical substances receive special attention under TSCA: PCBs, asbestos, radon, lead, mercury, and formaldehyde.
- PCBs: Congress singled out PCBs in 1976 by implementing a phased ban on the manufacture, processing, use and distribution in commerce of PCBs and requiring EPA to promulgate PCB disposal regulations.
- Asbestos: In 1986, Congress enacted the Asbestos Hazard Emergency Response Act (AHERA) and amended the act in 1990 to modify EPA’s school asbestos remediation program.
- Radon: Radon received special attention in 1988 when Congress set as a long-term national goal that indoor radon levels are not to exceed outside ambient levels.
- Lead: In 1992, Congress enacted TSCA Title IV to create a national program to achieve the national goal of eliminating lead-based paint hazards from housing as expeditiously as possible. In 2007, Congress enacted TSCA Title V, authorizing EPA to establish a state grant program to provide technical assistance on EPA environmental programs for schools and to implement school environmental health programs. Title V also requires EPA to develop guidance addressing, among other things, school siting.
- Formaldehyde: Title VI of TSCA, the Formaldehyde Standards for Composite Wood Products Act, establishes limits for formaldehyde emissions from composite wood products: hardwood plywood, medium-density fiberboard, and particleboard. EPA has been directed by Congress to promulgate final regulations implementing the Act by January 1, 2013.
- Mercury: Title I of TSCA also prohibits the sale, distribution, or transfer of elemental mercury by Federal agencies.
Eight types of materials are generally exempt from TSCA’s regulatory authorities: pesticides, tobacco, specified nuclear material, firearms and ammunition, food, food additives, drugs, and cosmetics. Other Federal programs regulate many of these materials.
Application of TSCA to Federal Facilities
Toxic substances subject to TSCA regulation include PCBs, asbestos, lead, mercury, formaldehyde, and certain hexavalent chromium compounds. Operations at Federal facilities typically involve management of toxic substances regulated under TSCA. Older electric equipment, such as transformers, capacitors, and fluorescent ballasts, often contain PCBs. Prior to 1987, builders often erected structures using asbestos-containing materials. Under TSCA, Federal facility requirements range from basic reporting and recordkeeping to specific asbestos, lead and radon requirements.
TSCA requirements most often affect the regulation of PCBs, asbestos, and lead in Federal facilities. The federal government banned the consumer use of lead-based paint in housing starting in 1978. Specific activities regulated by TSCA at Federal facilities include:
- use of or disposal of equipment containing PCBs,
- performing lead abatement and renovation activities and asbestos abatement surveys and activities, and
- managing locations with potentially significant radon levels.
TSCA asbestos regulations require that only properly trained and certified persons perform asbestos abatement activities in public or commercial buildings. There are additional TSCA requirements if the building is a school building. Section 203(I) of AHERA directs the Department of Defense (DOD) to implement the Act's requirements in schools operated by DOD. This involves school building inspections, the preparation of asbestos management plans, and various training and work practices for building modifications are in the asbestos provisions of the National Emission Standards for Hazardous Air Pollutants (NESHAP) regulations. NESHAP regulations are under the Clean Air Act (CAA).
Although PCBs are exempt from federal Resource Conservation and Recovery Act (RCRA) regulations (40 CFR 261.8), state hazardous waste regulatory programs authorized by EPA may identify PCBs as hazardous wastes.
Below is a summary of key TSCA requirements.
Title I - Toxic Substances
EPA has the authority to require manufacturers or processors of chemicals and mixtures to conduct testing to evaluate the health and environmental effects of such chemicals. EPA can exercise this authority only when it finds the following:
- The chemical or mixture involved may present an unreasonable risk of injury to health or the environment
- The chemical or mixture will be produced in substantial quantities and is expected to enter the environment in substantial quantities or to result in significant or substantial human exposure
- Insufficient data are available to reasonably predict the chemical’s or mixture's effects on health and the environment
- Testing is deemed necessary to obtain the needed data
To require testing of mixtures, EPA must also find that the effects of the mixture may not be reasonably and more efficiently determined by testing the component chemicals. An Interagency Testing Committee of governmental experts advises EPA on what chemical substances to test. EPA must initiate a rulemaking to invoke the testing requirements for designated chemicals.
Manufacturers or importers of new chemicals must give EPA a 90-day advance notification of their intent to manufacture or import new chemicals, except for those chemicals excluded. TSCA Section 3 defines “new” as those chemicals that are not included on the published list of existing chemicals. Federal facilities can obtain this list by contacting the National Technical Information Service (NTIS).
EPA may designate the use of an existing chemical as a "significant new use", based on consideration of several factors, including the anticipated extent and type of exposure to human beings or the environment.
- Section 6(e) of TSCA prohibits the manufacture, processing, distribution in commerce, and use of PCBs, and requires the Administrator to control disposal.
- Section 6(e)(2) of TSCA provides that no person may manufacture, process, distribute in commerce or use any PCB in any manner other than in a totally enclosed manner. EPA can issue regulations to authorize a use that is not totally enclosed if EPA finds that it will pose no unreasonalbe risk of injury to human health or the environment.
- Section 6(e)(3) provides that no person may manufacture any PCB after January 1, 1979, or process or distribute in commerce any PCB after July 1, 1979, except to the extent that EPA specifically exempts such activities.
- Section 6(f) of TSCA prohibits the sale, distribution or distribution of elemental mercury by Federal agencies to any other Federal agency, any state or local government agency, or any private individual or entity except for the purpose of storage.
Under §8(a), EPA may require that manufactures and processors of chemicals keep records and report on the identity of those chemicals, their use, production volume, byproducts, health and environmental effects and exposure, and other data. EPA may require this data on a chemical-by-chemical basis, or by using the PAIR or CDR rules. Under the Preliminary Assessment Information Reporting (PAIR) Rule, producers and importers of a chemical substance or mixture listed under §8(a) at 40 CFR Part 712
, are required to submit to EPA certain specified production, importation, and exposure information.
The Chemical Data Reporting rule at 40 CFR Part 711
(CDR rule, formerly known as the Inventory Update Reporting [IUR] rule) requires that manufacturers (including importers) of chemical substances periodically report on the production volume and other exposure-related information (including manufacturing, processing, and use) of their chemicals.
A Federal facility is subject to §8(a) rules to the extent the facility produces or imports (and in some cases processes) a TSCA §8(a)-listed chemical substance or mixture.
Certain manufacturers and certain processors are required to maintain and, when requested, report to EPA "allegations" of significant adverse health and/or environmental reactions to TSCA-subject chemicals or mixtures. Subject persons must retain records of such allegations for 30 years (in the case of allegations regarding employee health) or 5 years (in the case of all other types of allegations).
§8(d): Health and Safety Studies
Under §8(d), manufacturers (including importers), processors, and distributors of a chemical substance or mixture identified in EPA regulations, 40 CFR Part 716
, are required to submit to EPA lists and copies of unpublished health and safety studies of those chemicals or mixtures. A Federal facility is subject to §8(d) regulations according to the terms of those regulations.
§8(e): Notice to Administrator of Substantial Risks
Any person who manufactures, processes, or distributes in commerce a chemical substance or mixture and who obtains information which reasonably supports the conclusion that such substance or mixture presents a substantial risk of injury to human health or the environment must immediately inform the Administrator of such information unless the person has actual knowledge that the Administrator has already been adequately informed of such information.
For purposes of section 8, the terms “manufacture” and “process” mean manufacture or process for commercial purposes.
EPA may inspect any establishment, facility, or other premises in which chemical substances are manufactured, processed, stored, or held before or after their distribution in commerce.
Under TSCA §12(b), exporters of chemicals and mixtures subject to certain proposed or final regulations, orders or other actions under TSCA §§4, 5, 6, and 7 must must notify the EPA, which will notify the receiving company.
TSCA §15 makes it unlawful for any person to violate specified TSCA requirements, or to refuse to permit entry or inspection under 15 U.S.C. 2610.
EPA must waive any provision of TSCA upon a request from the President on the ground that it is necessary in the interest of national defense.
Federal departments and agencies are authorized to make their services, personnel, and facilities available to EPA and to furnish and allow access to all such information that EPA reasonably determines is necessary to fulfill TSCA requirements.
EPA may issue grants to States for the establishment and operation of State programs to prevent or eliminate unreasonable risks from chemical substances.
§202(7): 15 U.S.C. §2642, Definitions:
Accredited Asbestos Contractor: The term “accredited asbestos contractor” means a person accredited pursuant to the provisions of §206 of this title.
Asbestos: The term “asbestos” means asbestiform varieties of chrysotile (serpentine), crocidolite (riebeckite), amosite (cummingtonite-grunerite), anthophyllite, tremolite, or actinolite.
Asbestos-Containing Material: The term “asbestos-containing material” means any material that contains more than 1 percent asbestos by weight.
Friable Asbestos-Containing Material: The term “friable asbestos-containing material” means any asbestos-containing material applied on ceilings, walls, structural members, piping, ductwork or any other part of a building that when dry may crumble, pulverize, or reduced to powder by hand pressure. The term includes non-friable asbestos-containing material after damaged to the extent that when dry it may crumble, pulverize, or reduced to powder by hand pressure.
Local Educational Agency: These institutions are defined as follows:
- Any local educational agency as defined in §198 of the Elementary and Secondary Education Act of 1965 (20 U.S.C. §3381)
- The owner of any private, nonprofit elementary or secondary school building
- The governing authority of any school operated under the defense dependents’ education system provided for under the Defense Dependents’ Education Act of 1978 (20 U.S.C. §921 et seq.)
EPA must promulgate regulations requiring the implementation of asbestos response actions in school buildings. These regulations cover inspections, response actions, and post-response actions, and require that warning labels be attached to any asbestos-containing materials still in routine maintenance areas of school buildings. Local educational agencies may face civil liability for violating TSCA or its regulations.
Federal facilities conducting asbestos inspections, removal, or abatement activities must ensure that these activities are performed by AHERA-accredited personnel.
Title III - Indoor Radon Abatement
Each Federal department or agency that owns Federal buildings shall conduct a study to determine the extent of radon contamination in such buildings.
Title IV - Lead Exposure Reduction
Lead-Based Paint Hazard: The term “lead-based paint hazard” means any condition that causes exposure to lead from lead-contaminated dust, lead-contaminated soil, lead-contaminated paint that is deteriorated or present on accessible surfaces, friction surfaces, or impact surfaces that would result in adverse human health effects pursuant to the provisions of this title.
Accessible Surface: The term “accessible surface” means an interior or exterior surface painted with lead-based paint that is accessible for a young child to mouth or chew.
Deteriorated Paint: The term “deteriorated paint,” means any interior or exterior paint that is peeling, chipping, chalking, or cracking. Additionally, this term applies to damaged or deteriorated paint located on any interior or exterior surface or fixture
Friction Surface: The term “friction surface” means an interior or exterior surface that is subject to abrasion or friction, including certain window, floor, and stair surfaces.
Impact Surface: The term “impact surface” means an interior or exterior surface that is subject to damage by repeated impacts, for example, certain parts of doorframes.
Target Housing: The term “target housing” means any housing constructed prior to 1978, except housing for the elderly or persons with disabilities (unless any child who is under 6 years of age resides or is expected to reside in such housing for the elderly or persons with disabilities) or any 0-bedroom dwelling.
40 C.F.R. §745.83
Renovation: The term "renovation" means the modification of any existing structure or portion thereof that results in the disturbance of painted surfaces. Among other things, it includes sanding, scraping or other activity that may generate paint dust.
40 C.F.R. §745.223
Child-occupied facilities: The term "child-occupied facility" means a building or portion of a building constructed prior to 1978 visited regularly by the same child, 6 years of age or younger, on alt least two days within any week (Sunday through Saturday period) provided that each day's visit lasts at least 6 hours, and the combined annual visits last at least 60 hours. Child-occupied facilities may include, but are not limited to, day-care centers, pre-schools, and kindergarten classrooms.
Lead-based paint activities: The term "lead-based activities" means, in the case of target housing and child-occupied facilities, inspection, risk assessment and abatement.
Section 402(a) requires the Administrator of EPA to promulgate regulations governing lead-based paint activities to ensure that individuals engaged in such activities are properly trained, that training programs are accredited, and that contractors engaged in such activities are certified.
Defines lead-based activities to mean in the case of target housing, risk assessment, inspection, and abatement; and in the case of any public building constructed before 1978, commercial building, bridge or other structure or superstructure, identification of lead-based paint and materials containing lead-based paint, deleading, removal of lead from bridges and demolition.
Section 406(b) requires the Administrator of EPA to promulgate regulations to require each person who performs for compensation a renovation of target housing to provide a lead hazard information pamphlet to the owner and occupant of such housing prior to commencing the renovation.
Federal agencies having jurisdiction over any property or facility, or engaged in any activity that may result in a lead-based paint hazard, are subject to all Federal, State, interstate, and local requirements respecting lead-based paint activities and lead-based paint hazards, to the same extent as any nongovernmental entity.
Requirements for Disclosure of Known Lead-Based Paint and/or Lead-Based Paint Hazards in Housing
(40 CFR Part 745 - Subpart F), Section 1018 of the Residential Lead-Based Paint Hazard Reduction Act of 1992 directed EPA and the Department of Housing and Urban Development to issue joint regulations requiring disclosure of known lead-based paint and/or lead-based paint hazards by persons selling or leasing housing constructed before 1978. Under this subpart, a seller or lessor of target housing is required to accomplish the following:
- Disclose to the purchaser or lessee the presence of any known lead-based paint and/or lead-based paint hazards
- Provide available records and reports
- Provide the purchaser or lessee with a lead hazard information pamphlet
- Provide purchasers a 10-day opportunity to conduct a risk assessment or inspection
- Attach specific disclosure and warning language to the sales or leasing contract before the purchaser or lessee is obligated under a contract to purchase or lease target housing
Title V – Reducing Risks in Schools Energy Independence and Security Act of 2007 - Subtitle E)
§501: Grants for healthy school environments
Section 501 authorizes the EPA Administrator, in consultation with the Secretary of Education, to provide grants to states for use in providing technical assistance for EPA programs (including Tools for Schools Program) to schools in addressing environmental issues; and for development and implementation of State school environmental health programs.
§502: Model guidelines for siting of school facilities
Section 502 requires the EPA Administrator, in consultation with the Secretary of Education and the Secretary of Health and Human Services, to issue voluntary selection guidelines for school sites. These voluntary guidelines should account for the special vulnerability of children to hazardous substances or pollution exposures in cases where the potential for contamination at a potential school site exists; modes of transportation for students and staff; and efficient use of energy.
§503: Public outreach
Section 503 provides that the EPA Administrator shall report annually to Congress on all activities conducted under TSCA Title V and makes available to the public information on the exposure of children to environmental hazards in school facilities.
§504: Environmental health program
Section 504 provides that the EPA Administrator, in consultation with the Secretary of Education, the Secretary of Health and Human Services, and other relevant agencies, shall issue voluntary guidelines for use by states in developing and implementing environmental health programs for schools. These voluntary guidelines shall take into account, with respect to school facilities, environmental problems to include the following contaminants, hazardous substances and pollutant emissions from material and products that presents, or may present, a risk to health of occupants at a school facility or the environment:
- Lead from drinking water
- Lead from materials and products
- Elemental mercury releases from products and containers
EPA’s principal enforcement authorities are set forth in TSCA §16. 15 U.S.C. §2615(b), TSCA §16(b) pertains to the assessment of criminal penalties for violations of TSCA or its implementing regulations. The existence of a violation is to be determined without consideration of the particular culpability of a violator; the consideration of this factor is only as an adjustment to a gravity-based penalty. Moreover, States, Tribes, and citizens have the authority under TSCA to enforce TSCA requirements as discussed below.
Historically, EPA has not assessed civil penalties against Federal agencies for violations of TSCA, except for violations of the lead-based paint requirements found in §1018 of Title X of the Residential Lead-Based Paint Hazard Reduction Act of 1992, 42 U.S.C. 4851 (“Title X”). A violation of §1018 is a prohibited act under §409 of TSCA. This is because, generally TSCA does not confer penalty or order authority upon EPA against federal facilities.
To address noncompliance at federal facilities under TSCA, and once a decision is made that the violations merit a formal EPA enforcement response, EPA generally issues a Notice of Non-Compliance (NON) or Notice of Violation (NOV) and negotiates a Federal Facilities Compliance Agreement (FFCA). See: Section 1018 - Disclosure Rule Enforcement Response Policy
Notice of Non-Compliance (NON) or Notice of Violation (NOV)
Historically, EPA has used the terms NON and NOV interchangeably at federal facilities to provide notice to a facility that EPA has found violations. An NON or NOV issued to a federal facility under a statute in which EPA does not have penalty or order authority is similar to a complaint issued to a private facility in that it lists alleged violations, but does not include a penalty provision. An NON or NOV issued to a federal facility is tailored to address the specific circumstances presented by the situation, the violation, and applicable program-specific requirements. A NON or NOV generally requests that the facility enter into negotiations for a Federal Facility Compliance Agreement (FFCA).
Federal Facility Compliance Agreements
For non-lead based paint violations, EPA should issue a Notice of Violation and require a federal agency to come into compliance with TSCA using a Federal Facility Compliance Agreement (FFCA), if appropriate, which should include a compliance schedule and dispute resolution. The authority to issue the NOV and enter into the FFCA would be E.O. 12088.
Federal employees (and contractor staff at federal facilities) may be subject to criminal sanctions, in accordance with §16(b) of TSCA, and 45 U.S.C. §2615(b) for knowing or willful violations of TSCA. Listed below are the criminal penalties.
§16(b): Fines, any person who knowingly or willing violates certain sections of TSCA Subchapters I, II, or IV will be subject, upon conviction, to a fine of not more than $32,500 for each day of violation and/or imprisonment not to exceed 1 year. Additionally, criminal fines may be imposed under 18 U.S.C. §3571, the Alternative Fines Act.
States are pre-empted under TSCA from issuing TSCA enforcement cases unless they have TSCA look alike laws. Currently no state has implemented legislative authority to take TSCA enforcement actions.
TSCA is silent regarding Indian Tribes and thus does not explicity address the role of Tribes in implementing the statute's programs. However, EPA has exercised its discretion to fill implementation gaps and, through regulations, provided opportunities for Tribes to administer and enforce certain TSCA programs and to apply for TSCA grants. EPA has a TSCA section 10 grant program for federally recognized tribes/tribal consortia to conduct education and outreach activities in support of the goal to reduce childhood lead poisoning. In addition, federally recognized tribes/tribal consortia can apply for EPA's targeted lead grants to reduce childhood lead poisoning and for authorization by EPA to conduct TSCA programs and activities to the same manner as state governments.
TSCA §20(a) allows citizens to file a civil action (civil suit) against any Federal agency alleged to be in violation of TSCA requirements and any rule promulgated under the following sections:
- Section 4 (testing of chemical substances and mixtures)
- Section 5 (manufacturing and processing notices)
- Section 6 (regulation of hazardous chemical substances and mixtures)
- TSCA Subchapter II (Asbestos Hazard Emergency Response)
- TSCA Subchapter IV (Lead Exposure Reduction)
In addition, TSCA §20(a) allows citizens to file a civil action against any Federal agency that is alleged to be in violation of any order issued under §5 or Subchapters II or IV of TSCA. TSCA §20(a) also allows citizens to file civil actions against the EPA Administrator to compel the Administrator to perform any non-discretionary act or duty.
TSCA §20(b) excludes citizens from filing a civil action if EPA has filed and is diligently prosecuting a TSCA violation; however, citizens can intervene in the case. TSCA §20(b) also precludes citizens from filing a suit until notification is given to EPA and the facility alleged to be in violation of TSCA. Additional conditions and requirements pertaining to citizen suits are set forth in TSCA §20(a) through (d).
EPA TSCA Policies and Guidance
EPA has developed documents, guidance and policies covering TSCA and TSCA’s requirements. Provided below is a selected group of policies and publications:
More TSCA Information: