Bergeson & Campbell, P.C. (B&C®) is a Washington, D.C. law firm providing chemical and chemical product stakeholders unparalleled experience, judgment, and excellence in matters relating to TSCA, and other global chemical management programs.

By Lynn L. Bergeson and Carla N. Hutton

On October 17, 2019, the House Committee on Science, Space, and Technology unanimously approved the Sustainable Chemistry Research and Development Act (H.R. 2051), a companion bill to legislation introduced in the Senate by Senators Chris Coons (D-DE), Susan Collins (R-ME), Amy Klobuchar (D-MN), and Shelley Moore Capito (R-WV).  Representative Dan Lipinski (D-IL) introduced the House bill on April 3, 2019.  It is co-sponsored by Representative John Moolenaar (R-MI).  The bill is intended to improve coordination of federal activities, including research and development of more sustainable chemicals, processes, and systems by establishing a coordinating entity under the National Science and Technology Council within the Office of Science and Technology Policy.  The legislation would allow the agencies involved in this entity to work, in consultation with qualified stakeholders, to assess the state of sustainable chemistry in the United States and encourage the validation of tools for assessment of sustainable chemistry processes or products.  The agencies would include the U.S. Environmental Protection Agency, the National Institute of Standards and Technology, the National Science Foundation, the Department of Energy, the Department of Agriculture, the Department of Defense, the National Institutes of Health, the Centers for Disease Control and Prevention, the Food and Drug Administration, and other related federal agencies, as appropriate.  The bill also supports improved education and training in sustainable chemistry.


 

By Lynn L. Bergeson, Kathleen M. Roberts, and Richard E. Engler, Ph.D.

In September 2018, the U.S. Environmental Protection Agency (EPA) issued a consent agreement with Chevron USA, Inc. (Chevron) related to an alleged violation of the Toxic Substances Control Act (TSCA). 

EPA’s issuance of a consent agreement for the alleged TSCA violation is not especially newsworthy.  Neither is the agreed upon penalty for the violation, which could be considered minor based on the penalty provisions allowed under TSCA.  What is newsworthy here is that the alleged violation, technically three as the violation occurred on three separate days, was related to the research and development (R&D) exemption.  Specifically, EPA alleged that Chevron did not appropriately label chemicals that it had distributed to other companies for R&D purposes.  In our experience, the R&D exemption under TSCA is seldom the subject of enforcement scrutiny.  This may be changing.

 The R&D exemption is a critical aspect of TSCA and it offers many companies significant flexibility to research new chemical innovations.  The exemption is self-implementing and thus does not require pre-approval by or submissions to EPA.  Nonetheless, there are specific restrictions and recordkeeping requirements associated with reliance on that exemption.  The consent agreement at issue here confirms that EPA will hold companies accountable to these requirements.  The enforcement action is an important reminder to all entities relying upon the R&D exemption to ensure that they comply strictly with each element of the exemption requirements as identified under TSCA Section 5(h)(3).

Companies relying on the R&D exemption for new chemical development may wish to review internal files and processes to ensure compliance, as EPA has shown its intent to pursue violations and associated penalties for non-compliance instances.