Congress Reforms Toxic Substances Control ActOctober 2016
The federal Toxic Substances Control Act (TSCA), passed 40 years ago, regulates the safety of chemicals used in manufacturing. A substantial revision, called The Frank R. Lautenberg Chemical Safety for the 21st Century Act (the "Act"), went into effect on June 22, 2016, having received support from majorities of both parties in Congress.
The Act is likely to have a significant impact on the industrial use and consumption of chemicals that present toxic risks. Following are the most significant changes:
- No Grandfathering. The 1976, TSCA applied only to new chemicals introduced after that date, or to new uses for existing chemicals. Chemicals and uses existing in 1976 or earlier were grandfathered, without review of their toxic effects. The 2016 Act eliminates the grandfathering, opening the door for the first-ever TSCA review of many chemicals that have been widely used for decades.
- Setting Priorities for Review of Existing Chemicals. The Act establishes new standards and procedures to be used in evaluating the risks of chemicals. It requires EPA to establish rules containing criteria for identifying high- priority and low- priority chemicals to be reviewed.
- Risk Evaluations Performed without Regard to Cost. The first step in looking at a chemical identified for review will be preparation of a "risk evaluation,." which may not consider cost or other non-risk factors.
- Chemical-Specific Risk Management Rules. The next step, once a risk evaluation shows that a chemical poses an unreasonable risk, is the development of an applicable risk management rule. At this stage, EPA may consider economic factors. For a specific chemical, EPA can adopt a rule ranging from requiring improved warnings to an outright ban.
- Changed Procedures for Evaluating New Chemicals and Uses. The Act changes EPA's approach to new chemicals as well as existing ones. As under the 1976 TSCA, a manufacturer must notify EPA of any use of a new chemical or changed use for an old one. Unlike under the former law, however, affirmative approval (rather than the mere passage of time after notification to EPA) is required before the new chemical may be used.
- Manufacturer Notification and Update of the TSCA Inventory. EPA must develop a final rule by June 22, 2017 that requires manufacturers and possibly processors to notify EPA within 180 days after the final rule is published, of all chemicals they manufactured or processed in the previous 10 years. EPA will then determine which chemicals are currently active on the TSCA Inventory.
- Testing Authority. EPA has been given expanded authority to obtain information on toxicity, exposure, and other matters, through the use of consent agreements and orders.
- Confidential Business Information. The Act contains new provisions that tighten the standards for protecting chemical information from public disclosure on the ground that the information constitutes Confidential Business Information.
- Funding. EPA can establish user fees under which chemical manufacturers and processors would contribute to the cost incurred to assess and regulate their chemical or the chemical's use.
- Preemption of State Laws. The Act contains extensive provisions addressing the interaction of federal and state laws on this subject; In many areas, states are left free to enact and enforce regulations on the use of toxic substances.
In anticipation of the new Act's passage, and in the nearly four months since its enactment, EPA has started to implement it. In 2014, EPA published a Work Plan List of chemicals that would most likely require evaluations. EPA will initiate risk evaluations of 10 chemicals from that list by mid-December 2016. EPA intends soon to issue rules regarding the solvent trichloroethylene in spot cleaning, aerosol degreasing, and vapor degreasing, as well as the use of methylene chloride and N-methylpyrrolidone in paint removers.
What Lewis Rice Clients Should Be Doing
If you use toxic chemicals in manufacturing, we suggest you consider taking the following actions:
- Track orders for new chemicals or new uses that you plan to make of existing chemicals, to determine whether you need to notify EPA.
- Review all chemicals you manufactured or processed within the last 10 years, so that you are prepared to inform EPA of those chemicals once a final rule requiring notifications is in place.
- Review the chemicals used within your products, to determine which might become high-priority targets for EPA risk evaluations.
- Check the Work Plan List to determine whether it includes any chemicals used in your product, and consider possible substitutes.
- Pay attention to ongoing risk evaluations on chemicals that you manufacture, process, or use, and participate in any appropriate rulemaking, including risk management rulemaking for those chemicals.
- Be prepared to substantiate Confidential Business Information claims, whether they are new or previously asserted.
- Pay attention to new or proposed state chemical legislation and regulations, because the states might not be preempted.
To read a more detailed summary of the changes to the TSCA, click under "Resources" below.