TSCA Reform Will Give EPA Greater Power to Regulate Hazardous Chemicals
Posted on March 25, 2016 | in Safety
Despite the political brinksmanship in Washington during this election year, Congress is close to sending a bill to the President’s desk that would strengthen the provisions of the Toxic Substances Control Act (TSCA) and give the EPA greater authority to identify and regulate hazardous chemicals.
Last June, the TSCA Modernization Act of 2015 (H.R. 2576) was passed almost unanimously in the House (398-1). The Senate picked up the bill in December and, after making only minor changes to the language, passed S. 697 with overwhelming bi-partisan support. Congress is now in the process of reconciling the two bills, but contention over states’ regulatory jurisdiction, as well as concerns from both industry and environmental groups, could keep the legislation from hitting the President’s desk anytime soon.
The proposed legislation contains changes to the TSCA that have the potential to significantly impact chemical manufacturers, importers, processors, and distributors. Some of the major changes include:
- The adoption of a “safety standard” to “ensure that no unreasonable risk of harm to health or the environment will result from exposure to a chemical under the conditions of use.”
- The EPA must prohibit or restrict the manufacture, processing, use, distribution, or disposal of a new chemical, or a significant new use of an existing chemical, if the chemical will not likely meet the safety standard, or additional information is necessary to make a safety determination.
- If a chemical does not meet the safety standard, the EPA must impose restrictions to assure that it meets the standard, or ban or phase out the chemical when the safety standard cannot be met. In deciding which restrictions to impose, the EPA must take into consideration the costs and benefits of a proposed restriction as well as at least one alternative restriction.
- Confidential business information claims to protect information related to chemicals must be substantiated by manufacturers or processors and reviewed by the EPA. The type of information that is protected from disclosure and the duration of the protection are limited.
- Manufacturers and processors must pay fees to defray the cost of the bill. The TSCA Implementation Fund is established to receive such fees.
A complete list of proposed changes, along with the full text of the bill is available at Congress.gov.
Much of the delay in reconciling the language of the House and Senate bills stems from a single provision that the Senate included in their version of H.R. 2576. The proposed amendment determines the point at which the TSCA preempts state environmental laws during the testing and hazard assessment process for new chemicals. The Senate version triggers this preemption as soon as EPA begins testing a chemical, whereas H.R. 2576 triggers the preemption only after final determination of a chemical’s risk is made. Senator Barbara Boxer (D-CA) is challenging the Senate’s version of this amendment on the grounds that it would weaken California’s and other states’ ability to regulate chemicals.
California has some of the nation’s most aggressive environmental laws and a comparatively large budget with which to enforce them, but lawmakers in other less environmentally progressive states, as well as some industry groups have argued that blocking the Senate’s version of the amendment could leave other states’ citizens vulnerable in the absence of robust EPA oversight.
The debate in Congress is currently ongoing, and doubts now exist as to whether the bill will be finalized and ready to submit to the White House before President Obama leaves office. Regardless of this debate, however, both the House and Senate versions of the bills would greatly expand the authority of the EPA to evaluate, restrict, or even ban chemicals that are determined to be significantly hazardous.
Chemical manufacturers and other upstream chemical industries are likely to face substantial new reporting and safety obligations in order to comply with the new provisions of the TSCA and bring their products to market. Downstream chemical consumers may be faced with supply chain issues if their feedstocks become more difficult or costly to acquire, forcing them to identify more sustainable alternatives and re-engineer production processes.