Toxic and Hazardous Substances

Federal and state environmental laws establish a comprehensive regime to regulate the manufacture, processing and use of chemicals. Baker Botts lawyers guide clients through this regime to determine how their businesses are affected, focusing particularly on the safe production, storage, use and disposal of various chemical products and hazardous, toxic and/or radioactive materials.

We possess significant experience representing chemical manufacturers, importers and other clients on a wide variety of regulatory compliance and enforcement issues relating to chemicals management, import/export, product stewardship and other matters arising under the federal Toxic Substances Control Act (TSCA) and related environmental laws. By its nature, most of our practice involving TSCA and state chemical regulatory programs consists of providing advice to clients regarding existing federal/state requirements, as well as emerging proposals such as TSCA reform legislation and state-specific chemical management regimes. However, we also represent clients in allegations of noncompliance in EPA enforcement actions. We represent clients proactively preparing for TSCA inspections and making self-disclosures of violations. On the rulemaking level, Baker Botts lawyers advocate for clients’ interests at the agencies and in challenges to rulemakings in federal court. We represent clients interested in broad categories of chemicals regulation as well as clients focused on specific categories of chemicals and hazardous substances, such as polychlorinated biphenyls (PCBs) and lead-based paint.

Our lawyers also counsel clients on the Emergency Planning and Community Right-to-Know Act (EPCRA), which is the primary federal statute intended to address the presence in communities of facilities that handle hazardous substances. The typical EPCRA issues our clients face concern the Act's reporting requirements for the use, storage, production and/or release of chemical substances.

In addition, Baker Botts' environmental practice covers the regulation of pesticides under the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA). Our FIFRA work includes advising clients on the applicability of the Act and compliance with the registration and use requirements of the Act. We also advise clients on related state statutes.

The Emergency Planning and Community Right-to-Know Act (EPCRA) requires reporting by industrial facilities of certain storage of potentially hazardous chemicals or releases of such chemicals to the environment. Baker Botts lawyers help clients comply with EPCRA requirements and defend clients against accusations of non-compliance. Our lawyers address everything from relatively simple applicability determinations to complex issues concerning trade secrets.

EMERGENCY PLANNING & COMMUNITY RIGHT-TO-KNOW ACT

For example, we assist clients with:

  • Defense against EPCRA enforcement actions
  • Creation of comprehensive programs for facility compliance with EPCRA's chemical reporting requirements
  • Protection of trade secrets and confidential commercial information when complying with EPCRA
  • EPCRA issues arising during mergers and acquisitions

FEDERAL INSECTICIDE, FUNGICIDE & RODENTICIDE ACT

Baker Botts lawyers have experience with various aspects of the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA). In some cases our representation of clients under FIFRA has covered questions concerning the applicability of the Act in a variety of contexts, while in other cases we have addressed questions relating to compliance with particular provisions of the Act. Our clients have included manufacturers of pesticide products as well as companies that manufacture products incorporating pesticides and companies engaged in various activities involving the use of pesticides.

We have counseled our clients on a number of issues arising under FIFRA and related state laws, including:

  • Pesticide registration and reregistration requirements
  • Requirements applicable to pesticide-producing establishments, pesticide dealers and certified applicators
  • Assessment of whether compounds or devices are intended for pesticidal purposes and therefore subject to the requirements of FIFRA
  • Regulation of treated articles

In addition, we defend our clients against enforcement actions brought under FIFRA, such as those alleging product misbranding or adulteration.

TOXIC SUBSTANCES CONTROL ACT

The Toxic Substances Control Act (TSCA) and EPA's implementing regulations set forth detailed requirements for the production, import and use of chemical substances and mixtures. In 2016, Congress revised and updated the law for the first time in over forty years; EPA is now in the process of promulgating new and revised regulations to implement the key reforms established under the revised TSCA. We have assisted a number of clients in the chemical, petroleum, semiconductor, consumer product, pharmaceutical and other industries in virtually all aspects of TSCA, including the impact of the new reforms.

Specifically, in our practice we help clients:

  • Comply with reporting requirements under the Chemical Data Reporting Rule and other provisions of TSCA, such as the “substantial risk” reporting requirements of Section 8(e)
  • Determine the status of substances or mixtures with regard to EPA’s TSCA Inventory, including the confidential portion of the Inventory
  • Prepare Premanufacture Notices under Section 5, including determining whether one or more exemptions apply, such as those for polymers, research and development and low volume
  • Understand the scope of Significant New Use Rules promulgated by EPA under Section 5
  • Prepare required notifications and comply with import and export rules under Sections 12 and 13
  • Comply with EPA's regulations for managing PCBs
  • Interpret and understand the recently-enacted TSCA reforms, including those relating to federal preemption, confidential business information (CBI), and regulation and prioritization of new and existing chemicals
  • Assess the potential impacts arising from EPA's plan for implementing TSCA’s legislative changes, and the associated proposed rulemakings