The Toxic Substances Control Act of 1976 (TSCA) is a federal regulation that allows the U.S. Environmental Protection Agency (EPA) to comprehensively manage chemicals in U.S. commerce. TCSA Compliance can require companies to restrict and remove substances from products to maintain U.S. market access.
TSCA Compliance Chemical Restrictions
The EPA can use TSCA to restrict the use of certain substances (e.g. asbestos insulation or lead paint) that are deemed harmful to human health or to the environment. In certain cases, treated articles that include those harmful substances may also be restricted. Currently, TSCA places requirements on companies using any of the 14 in-scope substances in the manufacture of goods that will be sold in the U.S. Non-compliance may result in penalties of up to $50,000 USD per violation per day or prison time.
Obligations regarding TSCA can be simplified into three key aspects. Companies must:
- Document the use of restricted substances in parts, materials, and products, and retain the documentation for a minimum of three years.
- Communicate the presence of banned substances to customers.
- Evaluate consumables (e.g. hydraulic fluid, seals, or gaskets) and maintenance parts used for U.S.-based manufacturing and warehouse operations to determine if they contain in-scope substances.
Chemicals Subject to TSCA Restrictions
TSCA currently fully or partially restricts 14 substances or substance families:
- Lead (in paint and paint waste)
- Polychlorinated biphenyls (PCBs)
- Chlorofluorocarbons (CFCs)
- Metallic mercury (in consumer products)
- Nitrites (in metalworking fluids)
- Hexavalent chromium compounds (on metals used in water treatment)
- Phenol, Isopropylated Phosphate (3:1) (PIP 3:1)
- Decabromodiphenyl ether (DecaBDE)
- 2,4,6-Tri-tert-butylphenol (2,4,6 TTBP)
- Hexachlorobutadiene (HCBD)
- Pentachlorothiophenol (PCTP)
In January 2021, the EPA added the final five substances (in red) under Section 6(h) of TSCA. The agency set an aggressive timeline for companies to scope their supply chain, communicate the presence of the restricted substances to customers, and find alternatives to their use. Manufacturers have obligations from March 8, 2021, onward, and distributors will be brought into scope January 6, 2022, for some substances. The rules also prohibit the release of these substances into the environment.
Differences Within TSCA Restrictions
Not every substance restricted by TSCA is managed in the same way. For example, PIP 3:1, the most commonly used of the newly restricted substances, has its own deadlines for restriction. There are also disparate thresholds for substances and certain allowable use cases, such as limited use for the aerospace and defense sector. These nuances underscore the complexity companies must navigate to maintain TSCA compliance.
The EPA is responsible for the management and enforcement of TSCA. It has the authority to require reporting, recordkeeping, and testing from companies believed to be non-compliant. Penalties are calculated based on the severity and number of infractions. In 2020, Home Depot U.S.A. Inc. paid $20.75 million in penalties related to TSCA infractions.
For technical assistance and general information about TSCA programs, the EPA has a TSCA Hotline available at 202 554 1404.
Companies Subject to TSCA Requirements
There are few exceptions to TSCA requirements. If you manufacture, import into, or distribute within the U.S., you are likely in scope of the act. Companies not based in the U.S. that supply American companies may see an increase in customer requests for data related to the TSCA restrictions.
How to Meet TSCA Requirements
The supply chain data necessary to meet TSCA requirements may not be readily available, as many of the substances aren’t currently listed on other restricted lists, such as the European Union (EU)’s Candidate List of substances of very high concern (SVHCs). To learn about next steps for your company, download Assent’s webinar Collecting Missing Data to Meet New TSCA Deadlines.
Author’s note: Changes to the TSCA will continue as the EPA expands the legislation and industry responds. This article will continue to be updated to reflect