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October 24, 2016

Conditions of Use, Section 5 Review Period Flexibility?, and Other Resources

Bergeson & Campbell, P.C.

Role of “Conditions of Use” Under Sections 5 and 6 of Amended Toxics Law

The concept of “conditions of use” plays an important role in the Toxic Substances Control Act (TSCA) as amended by the Frank R. Lautenberg Chemical Safety for the 21st Century Act.   Conditions of use is a centralizing concept under which the U.S. Environmental Protection Agency (EPA) determines how a chemical is made, processed, used, and disposed.  The term is defined in Section 3 and also appears one or more times in the following Sections:  5, 6, 9, 14, 18, 21, and 26.  The term is not used in Sections 4 and 8.  Bergeson & Campbell, P.C. (B&C®) Managing Partner Lynn L. Bergeson and Senior Policy and Regulatory Advisor Charles M. Auer have just published a paper exploring the use and application of the term conditions of use under new TSCA Sections 5 and 6.  This paper provides insights into the implications of what may be its unusual use in Section 5 in comparison to Section 6:

Charles M. Auer, Lynn L. Bergeson, “Role of ‘Conditions of Use’ Under Sections 5 and 6 of Amended Toxics Law,” BNA Daily Environment Report, October 14, 2016.

Is The Section 5 Review Period Fixed Or Flexible In New TSCA?

Among its other requirements and authorities, Section 5 of new TSCA generally requires that a company timely submit to EPA a notice of its intent to manufacture or process a new chemical or significant new use (NC/SNU).  EPA is then required to conduct a review of the Section 5(a)(1) notice and make a determination on the NC/SNU and take required additional actions.  Questions have been raised as to whether the review period is fixed and requires that EPA determinations and actions be completed within that period, or if the statute can be read to permit a more flexible review period along the lines of how it was interpreted and applied in old TSCA with the use of voluntary suspensions.  Charles M. Auer and Lynn L. Bergeson’s article in the September, 2016, American Bar Association (ABA) Section of Energy, Environment, and Resources (SEER) Pesticides, Chemical Regulation, and Right-to-Know Committee (PCRRTK) Newsletter analyzes that question.

Charles M. Auer, Lynn L. Bergeson, “Is The Section 5 Review Period Fixed Or Flexible In New TSCA?, ABA Section of Environment, Energy, and Resources PCRRTK Newsletter, September, 2016.

“The New TSCA: What You Need to Know” 4-Part Webinar Series Available On-Demand

B&C collaborated with Chemical Watch in assembling an impressive faculty of TSCA experts representing the perspectives of industry, environmental organizations, and U.S. Federal and State regulatory authorities to present a series of complimentary webinars titled “‘The New TSCA’ — What You Need to Know.” Click here for detailed webinar agendas.
Recordings of all four webinars are available by request to B&C clients and other business and industry professionals; contact

Society of Toxicology (SOT) Risk Assessment Specialty Section (RASS) “Overview of TSCA Reform and Introduction to Key Provisions” Webinar Recording
Charles M. Auer, Senior Regulatory and Policy Advisor, B&C, former Director of EPA OPPT, and Oscar Hernandez, Ph.D., Senior Regulatory Chemist, B&C, former Director of the Risk Management Division, EPA OPPT, presented a webinar on new TSCA for the Risk Assessment Specialty Section of the SOT on October 12, 2016.  Presentation slides and a recording of that webinar are available to B&C clients and other business and industry professionals by contacting
Read B&C’s TSCA blog ( for the latest news and analysis regarding TSCA reform implementation and related legal and administrative developments.
B&C’s website contains all of our articles and regulatory memoranda regarding the amended TSCA, plus links to other rich resources.