Currently, if EPA has a concern about the toxicity (health or environmental effects) of a chemical, and therefore a generalized concern about increased human or environmental exposure, it can adopt a new use notice requirement, including for new use in an article to be imported into the U.S. It may be that industry could successfully sue to overturn a significant new use requirement under the current language of TSCA, but it hasn’t happened yet and there is no question that the new language raises the legal bar on EPA. Industry is seeking this language for a reason.
Some supporters of the Senate bill have argued that, while the new provision does change current law, it will have no practical effect on how EPA currently administers its SNUR program. This is incorrect. EPA would have a more difficult time adopting new use notice requirements under the new language in the Senate bill for the substances for which it has previously required notice of potential new use of a chemical in articles. For example, in its proposal to require notice for any new use of erionite fibers, EPA focused almost exclusively on the serious toxicity of the fibers (“In inhalation or injection studies in the rat and mouse, erionite fibers are more potent than crocidolite or chrysotile asbestos in inducing malignant mesothelioma.” 56 FR 2890). EPA noted that there were no current known uses of the fibers in the US and that, because of the serious health concerns the fibers raised, any new use, including importing in an article, would pose a risk of exposure and a potential health threat that warranted agency notice. EPA finalized a significant new use rule that applied to any new use, and “lifted” the articles exemption making the notice requirement applicable to imported articles. As a result, the public has been protected from any exposure to these cancer-causing fibers.
Under the new Senate language, EPA would now have to affirmatively identify any potential use of erionite fibers and then make a determination — subject to legal challenge and judicial review if it made it through the OMB gauntlet — regarding the reasonable potential of exposure to the fibers from any article or category of articles before it could require notification of its potential new use in an imported article. If EPA neglected to correctly predict one or more potential uses of erinonite fibers — using crystal ball gazing technology for the 21st Century — it could not then impose a new use notification requirement for those uses. Failure to imagine in advance every potential usewould leave the public vulnerable to importation of new articles that the Administrator did not anticipate or predict.
