Attachment A

Toxic Substances Control Act Section 6

15 U.S.C. 2605TI TL E 15

-- COMMERCE AND TRADE

CHAPTER 53

-- TOXIC SUBSTANCES CONTROL

SUBCHAPTER I

-- CONTROL OF TOXI C SUBSTANCES

Sec. 2605. Regulation of hazardous chemical substances and m ixtures

(a) Scope of regulation

If the Administrator finds that there is a reasonable basis to conclude that the manufacture, processing, distribution in commerce, use, or disposal of a chemical substance or mixture, or that

any combination of such a ctivities, presents or will present an unreasonable risk of injury to health or the environment, the Administrator shall by rule appl y one or more of the following requirements to such substance or mixture to the extent necessary to protect adequatel y agai nst such risk using the least burdensome requirements: (1) A requirement (A) prohibiting the manufacturing, processing, or distribution in commerce of such substance or mixture, or (B) limiting the amount of such substance or

mixture which may

be manufactured, processed, or distributed in commerce. (2) A requirement

-- (A) prohibiting the manufacture, processing, or distribution in commerce of such substance or mixture for (i) a particular use or (ii) a particular use in a concentration in excess of a level specified b y the Administrator in the rule imposing the requirement, or (B) limiting the amount of such substance or mixture which may be manufactured, processed, or distributed in co mmerce for (i) a particular use or (ii) a particular use in a concentration in excess of a level specified by the Administrator in the rule imposing the requirement.

(3) A requirement that such substance or mixture or any article containing such substance or mixture be marked with or accompanied b y clear and adequate warnings and instructions with respect to its use, distribution in commerce, or disposal or with respect to an y combination of such activities. The form an d content of such warnings and instructions shall be prescribed b y the Administrator. (4) A requirement that manufacturers and processors of such substance or mixture make and retain records of the processes used to manufacture or process s uch substance or mixture and monitor or conduct tests which are reasonable and necessary to assure compliance with the requirements of any

rule applicable under this subsection. (5) A requirement prohibiting or otherwise regulating an y mann er or method of commercial

use of such substance or mixture. (6)(A) A requirement prohibiting or otherwise regulating an y manner or method of disposal of such substance or mixture, or of any article containing such substance or mixture, by its manufacturer or processor or by any other person who uses, or disposes of, it for commercial

purposes. (B) A requirement under subparagraph (A) may not require any

person to take an y action

which would be in violation of an y law or requirement of, or in effect for, a State or political subdivision, and shall require each person subject to it to notify each State and politicalsubdivision in which a required disposal may occur of such disposal. (7) A requirement direct ing manufacturers or processors of such substance or mixture (A) to give notice of such unreasonable risk of injury to distributors in commerce of such substance or mixture and, to the extent reasonably ascertainable, to other persons in

posses sion of such substance or mixture or exposed to such substance or mixture, (B) to give public notice of such risk of injury , and (C) to replace or repurchase such substance or

mixture as elected b y the person to which the requirement is directed.

Any requirement (or combination of requirements) imposed under this subsection may be limited in application to specified geographic areas.

(b) Qualit y control

If the Administrator has a reasonable basis to conclude that a particular manufacturer or processor is manufacturing or processing a chemical substance or mixture in a manner which unintentionally

causes the chemical substance or mixture to present or which will cause it to present an unreasonable risk of injury to health or the environment

-- (1) the Administrator may by order require such manufacturer or processor to submit a description of the relevant quality control procedures followed in the manufacturing or processing of such chemical substance or mixture; and (2) if the Administrator determines

-- (A) that such quality

control procedures are inadequate to prevent the chemical substance or mixture from presenting such risk of injury , the Administrator may order the manufacturer or processo r to revise such quality control procedures to the extent necessary

to remed y such inadequacy; or (B) that the use of such quality control procedures has resulted in the distribution in

commerce of chemical substances or mixture s which present an unreasonable risk of injury to health or the environment, the Administrator may order the manufacturer or processor to (i) give notice of such risk to processors or distributors in commerce of an y such

substance o r mixture, or to both, and, to the extent reasonably ascertainable, to any

other person in possession of or exposed to an y such substance, (ii) to give public notice of such risk, and (iii) to provide such replacement or repurchase of an y s uch substance or mixture as is necessary

to adequatel y protect health or the environment.

A determination under subparagraph (A) or (B) of paragraph (2) shall be made on the record after opportunit y for hearing in accordance with section 554 of ti tle 5. Any manufacturer or processor subject to a requirement to replace or repurchase a chemical substance or mixture may elect either to replace or repurchase the substance or mixture and shall take either such action in the manner prescribed b y the Admi nistrator.

(c) Promulgation of subsection (a) rules

(1) In promulgating any rule under subsection (a) of this section with respect to a chemical substance or mixture, the Administrator shall consider and publish a statement with respect to

-- (A) the effects of such substance or mixture on health and the magnitude of the exposure of human beings to such substance or mixture,(B) the effects of such substance or mixture on the environment and the magnitude of the

exposure of the environment to such substance or mixture, (C) the benefits of such substance or mixture for various uses and the availability of substitutes for such uses, and (D) the reasonabl y ascertainable economic consequences of the rule, after co nsideration of

the effect on the national econom y, small business, technological innovation, the environment, and public health.

If the Administrator determines that a risk of injury to health or the environment could be

eliminated or reduced to a sufficient extent by actions taken under another Federal law (or laws) administered in whole or in part by the Administrator, the Administrator may not promulgate a rule under subsection (a) of this section to protect against such risk of injury unless t he Administrator finds, in the Administrator’s discretion, that it is in the public interest to protect against such risk under this chapter. In making such a finding the Administrator shall consider (i) all relevant aspects of the risk, as determined b y t he Administrator in the Administrator’s discretion, (ii) a comparison of the estimated costs of comply ing with actions taken under this chapter and under such law (or laws), and (iii) the relative efficiency of actions under this chapter and under such la w (or laws) to protect against such risk of injury

. (2) When prescribing a rule under subsection (a) the Administrator shall proceed in accordance with section 553 of title 5 (without regard to an y reference in such section to sections

556 and 557 of s uch title), and shall also (A) publish a notice of proposed rulemaking stating with particularit y the reason for the proposed rule; (B) allow interested persons to submit written data, views, and arguments, and make all such submissions publicly available; (C) provide an opportunity

for an informal hearing in accordance with paragraph (3); (D) promulgate, if appropriate, a final rule based on the matter in the rulemaking record (as defined in section 2618(a) of this title), and (E) make and publish with the rule the finding described in subsection (a) of this section. (3) Informal hearings required b y paragraph (2)(C) shall be conducted by the Administrator in accordance with the following requirements: (A) Subject to subparagraph (B), an interes ted person is entitled

-- (i) to present such person’s position orally or by documentary

submissions (or both), and (ii) if the Administrator determines that there are disputed issues of material fact it is

necessary to resol ve, to present such rebuttal submissions and to conduct (or have conducted under subparagraph (B)(ii)) such cross

- examination of persons as the the Administrator determines (I) to be appropriate, and (II) to be required for a full and true disclosure with respect to such issues.

(B) The Administrator may prescribe such rules and make such rulings concerning procedures in such hearings to avoid unnecessary costs or delay . Such rules or rulings may include (i) the imp osition of reasonable time limits on each interested person’s oral presentations, and (ii) requirements that an y cross

- examination to which a person may be entitled under subparagraph (A) be conducted by the Administrator on behalf of that person in such manner as the Administrator determines (I) to be appropriate, and (II) to be required for a full and true disclosure with respect to disputed issues of material fact.

(C)(i) Except as provided in clause (ii), if a group of persons each of whom undersubparagraphs (A) and (B) would be entitled to conduct (or have conducted)

cross

- examination and who are determined by the Administrator to have the same or similar interests in the proceeding cannot agree upon a single repre sentative of such interests for purposes of cross

- examination, the Administrator may make rules and rulings (I) limiting the representation of such interest for such purposes, and (II) governing the manner in which

such cross

- examination shall be limited. (ii) When any

person who is a member of a group with respect to which the Administrator has made a determination under clause (i) is unable to agree upon group representation with the other members of the group, then such person shall not be denied under the authorit y of clause (i) the opportunity to conduct (or have conducted) cross

- examination as to issues affecting the person’s particular interests if (I) the person satisfies the Administrator that the person has m ade a reasonable and good faith effort to reach agreement upon group representation with the other members of the group and (II) the Administrator determines that there are substantial and relevant issues which are not adequatel y presented by the g roup representative. (D) A verbatim transcript shall be taken of any oral presentation made, and

cross

- examination conducted in any informal hearing under this subsection. Such transcript shall be available to the public.

(4)(A) The Administrator may , pursuant to rules prescribed by the Administrator, provide compensation for reasonable attorney s’ fees, expert witness fees, and other costs of participating in a rulemaking proceeding for the promulgation of a rule under subsection (a) of this section to

any person

-- (i) who represents an interest which would substantially contribute to a fair determination of the issues to be resolved in the proceeding, and (ii) if

-- (I) the economic interest of such person is small in comparison to the costs of effective participation in the proceeding b y such person, or (II) such person demonstrates to the satisfaction of the Administrator that such person

does not have sufficient resource s adequatel y to participate in the proceeding without compensation under this subparagraph.

In determining for purposes of clause (i) if an interest will substantially contribute to a fair determination of the issues to be resolved in a proceedin g, the Administrator shall take into account the number and complexity of such issues and the extent to which representation of such interest will contribute to widespread public participation in the proceeding and representation of

a fair balance of inter ests for the resolution of such issues. (B) In determining whether compensation should be provided to a person under subparagraph (A) and the amount of such compensation, the Administrator shall take into account the financial

burden which will be incu rred b y such person in participating in the rulemaking proceeding. The Administrator shall take such action as may be necessary

to ensure that the aggregate amount of compensation paid under this paragraph in an y fiscal year to all persons who, in rulemaki ng proceedings in which they receive compensation, are persons who either

-- (i) would be regulated by the proposed rule, or (ii) represent persons who would be so regulated,may

not exceed 25 per centum of the aggregate amount paid as comp ensation under this paragraph to all persons in such fiscal ye ar. (5) Paragraph (1), (2), (3), and (4) of this subsection apply

to the promulgation of a rule repealing, or making a substantive amendment to, a rule promulgated under subsection (a) of thi s section.

(d) Effective date

(1) The Administrator shall specify in an y rule under subsection (a) of this section the date on which it shall take effect, which date shall be as soon as feasible. (2)(A) The Administrator may declare a proposed ru le under subsection (a) of this section to be effective upon its publication in the Federal Register and until the effective date of final action taken, in accordance with subparagraph (B), respecting such rule if

-- (i) the Administrator determines that

-- (I) the manufacture, processing, distribution in commerce, use, or disposal of the chemical substance or mixture subject to such proposed rule or any combination of such activities is likely

to result in an unreasonable risk of serious or widespread injury to health or the environment before such effective date; and (II) making such proposed rule so effective is necessary to protect the public interest;

and (ii) in the case of a propose d rule to prohibit the manufacture, processing, or distribution of a chemical substance or mixture because of the risk determined under clause (i)(I), a court has in an action under section 2606 of this title granted relief with respect to such ris k associated

with such substance or mixture.

Such a proposed rule which is made so effective shall not, for purposes of judicial review, be considered final agency

action. (B) If the Administrator makes a proposed rule effective upon its publicati on in the Federal Register, the Administrator shall, as expeditiously as possible, give interested persons prompt notice of such action, provide reasonable opportunity , in accordance with paragraphs (2) and (3) of subsection (c) of this section, for a hear ing on such rule, and either promulgate such rule (as proposed or with modifications) or revoke it; and if such a hearing is requested, the Administrator shall commence the hearing within five day s from the date such request is made

unless the Administrato r and the person making the request agree upon a later date for the hearing to begin, and after the hearing is concluded the Administrator shall, within ten day s of the conclusion of the hearing, either promulgate such rule (as proposed or with modificatio ns) or

revoke it.

(e) Poly chlorinated bipheny ls

(1) Within six months after January 1, 1977, the Administrator shall promulgate rules to

-- (A) prescribe methods for the disposal of poly chlorinated bipheny ls, and (B) require poly chlori nated biphen yl s to be marked with clear and adequate warnings, and instructions with respect to their processing, distribution in commerce, use, or disposal or with respect to an y combination of such activities.Requirements prescribed by rules un der this paragraph shall be consistent with the requirements of paragraphs (2) and (3). (2)(A) Except as provided under subparagraph (B), effective one ye ar after January 1, 1977,

no person may

manufacture, process, or distribute in commerce or use any poly chlorinated bipheny l in any

manner other than in a totally enclosed manner. (B) The Administrator may by rule authorize the manufacture, processing, distribution in commerce or use (or an y combination of such activities) of an y polychlorinated bip hen yl in a manner other than in a totally enclosed manner if the Administrator finds that such manufacture, processing, distribution in commerce, or use (or combination of such activities) will not present an unreasonable risk of injury to health or the en vironment. (C) For the purposes of this paragraph, the term ``totally enclosed manner’‘ means any manner which will ensure that any exposure of human beings or the environment to a poly chlorinated bipheny l will be insignificant as determined by the Adm inistrator by

rule. (3)(A) Except as provided in subparagraphs (B) and (C)

-- (i) no person may

manufacture an y pol yc hlorinated bipheny l after two y ears after January 1,1977, and (ii) no person may

process or distribute in commerce a ny pol yc hlorinated bipheny l after

two and one

- half y ears after such date.

(B) An y person may petition the Administrator for an exemption from the requirements of subparagraph (A), and the Administrator may grant by rule such an exemption if the

Ad ministrator finds that

-- (i) an unreasonable risk of injury to health or environment would not result, and (ii) good faith efforts have been made to develop a chemical substance which does not present an unreasonable risk of injury to h ealth or the environment and which may be substituted for such poly chlorinated bipheny l.

An exemption granted under this subparagraph shall be subject to such terms and conditions as the Administrator may

prescribe and shall be in effect for such peri od (but not more than one

ye ar from the date it is granted) as the Administrator may prescribe. (C) Subparagraph (A) shall not apply to the distribution in commerce of any pol yc hlorinated bipheny l if such pol yc hlorinated biphen yl was sold for purposes other than resale before two and

one half ye ars after October 11, 1976. (4) An y rule under paragraph (1), (2)(B), or (3)(B) shall be promulgated in accordance with paragraphs (2), (3), and (4) of subsection (c) of this section. (5) This subsection does not limit the authority of the Administrator, under any other provision of this chapter or an y other Federal law, to take action respecting an y pol yc hlorinated biphen yl

.

(Pub. L . 94

- 469, title I, Sec. 6, Oct. 11, 1976, 90 Stat. 2020; renumbered title I, Pub. L . 99

- 519, Sec. 3(c)(1), Oct. 22, 1986, 100 Stat. 2989.)

Section Referred to in Other Sections

This section is referred to in sections 2603, 2604, 2606 to 2608, 2611, 2612, 2614, 2616 to 2620, 2623, 2630 of this title; titl e 10 section 2708; title 42 section 6925.