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June 13, 2018

Inside EPA Quotes NCC in “New Chemicals Group Seeks Refund Information In EPA’s TSCA Fees Rule”

The ACTA Group

On June 13, 2018, Inside EPA included comments from the Toxic Substance Control Act (TSCA) New Chemicals Coalition (NCC) regarding the omission of language in the U.S. Environmental Protection Agency’s (EPA) proposed fee rule about how it will refund companies whose new chemical use applications are not reviewed by the statutory deadline. The Acta Group (Acta®) affiliate Bergeson & Campbell, P.C. (B&C®) provides legal counsel to the TSCA NCC. Membership is open to individual chemical companies with a vested interest in the EPA new chemical notification process due to commercial impacts related to past, existing, or future new chemical notifications.

The New Chemicals Coalition (NCC), a group of companies which regularly seek EPA approval for new chemical uses, writes in May 24 comments that the agency is missing statutory deadlines to complete its reviews of new chemicals but has not proposed a process for how it will reimburse industry fees in such cases in the future.

NCC says it “is aware of far too many cases in which new chemicals assessments have been completed, yet final actions related to significant new use rules (SNUR) or other implementing actions remain undone. Such inaction by EPA has dramatic commercial effects on the impacted companies,” the group writes.


Now NCC, which is managed by the law firm Bergeson & Campbell, is raising the question of how the agency will refund new chemicals fees if it does not meet statutory deadlines, especially for PMNs.

“Certainly if EPA were to proceed with the higher fees as currently proposed, it must address the current weaknesses in the system and ensure that all work under Section 5 is completed in a timely manner. EPA must establish a process in which Section 5 review timelines reach a level of consistency that is more in line with Congressional intent and the statutory language. This is not the case currently and must be corrected.”

Its concern over adverse commercial impacts when EPA fails to quickly review new uses appears to run head on into the group’s other suggestion: that EPA must include in the final rule language on “when and how Section 5 fees would be reimbursed to the notifying company if the EPA review process is not completed within” the statutorily-mandated 90 days.

The group says that EPA’s existing proposal does not address the issue — noting that EPA’s Federal Register notice announcing the proposal’s release for comment states “EPA does not have authority to, and therefore will not, provide refunds under any other circumstances [than withdrawal of the PMN], which is untrue; amended TSCA Section 5(a)(4)(A) clearly mandates that EPA refund fees if EPA fails to complete its Section 5 assessment within the statutory timeframe.”

The group goes on to acknowledge that while such language “is not noted in Section 26(b)(4)(G) regarding refunds, the statutory intent is clear in the language at Section 5(a)(4)(A). This statutory provision states that EPA ‘shall refund to the submitter all applicable fees charged to the submitter for review of the notice pursuant to section 26(b).’ The provision goes on in subsection B to state that ‘a refund of applicable fees under subparagraph (A) shall not be made’ if EPA makes certain certifications.”

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