Efforts to reform the Toxic Substances Control Act (TSCA), 15 U.S.C. § 2601 et seq., have been underway for several years, but to date, none have succeeded in modifying how this often criticized law regulates chemicals in industrial, commercial, and consumer applications. Indeed, TSCA is the only major environmental law that has not been amended since its enactment in 1976. However, that pattern may soon change. In March 2015, two new bills were introduced to reform TSCA that have already garnered much attention by lawmakers and industry members alike.
TSCA deals with the production, importation, use, and disposal of certain chemical substances. It places restrictions on those substances and authorizes the United States Environmental Protection Agency (EPA) to require testing, reporting, and recordkeeping for each designated substance. EPA also must compile and maintain a published list of each chemical substance manufactured or processed in the U.S. This inventory currently contains more than 83,000 chemicals. Inclusion of a substance on the inventory determines whether it is considered an "existing" chemical in U.S. commerce or a "new" chemical, the latter of which triggers notice and review obligations. EPA’s authority to regulate "new" chemical substances differs from its authority over existing ones.
Despite the extensive inventory of chemicals, only a small number of chemical substances are formally regulated under TSCA. Those include polychlorinated biphenyls (PCBs), asbestos, radon, and lead-based paint. Members of the public and private sectors, academia, and non-governmental organizations agree that TSCA needs to be updated to protect the public health and to better align with the changing scientific, technological, and legal environment.
A focal point of reform efforts has been the extent of EPA’s authority to regulate chemical substances. The current definition of the term "chemical substance" includes nearly all chemicals intended for commercial purposes in the U.S. Under TSCA, EPA has the power to regulate existing chemicals only if it finds there is a reasonable basis to conclude that the chemical’s manufacture, processing, distribution, use, or disposal poses an unreasonable risk of injury to human health or the environment. When EPA determines that a chemical should be subject to regulation, TSCA requires that it select the least economically burdensome controls that would adequately protect against the chemical’s unreasonable risks.
Another key issue discussed by reformers is TSCA’s preemptive effect on state laws that regulate chemicals. Presently, TSCA contains a limited "express preemption" provision which leaves states largely free to impose testing requirements or other restrictions on chemical substances if EPA has not yet enacted the same type of rule. However, if EPA has implemented regulations of the chemical, state and local restrictions addressing the same risks are pre-empted (except for state bans on the substance altogether).
Past proposed reforms for TSCA have varied, with the stakeholders involved continually debating the best way to rectify the perceived shortcomings of the current law, and without clear consensus emerging. For instance, one bill introduced in 2013, the Chemical Safety Improvement Act (S. 1009), proposed that a chemical substance could continue being produced and used only if EPA affirmatively determined that no unreasonable risk of harm to human health or the environment would result from exposure to the substance when used for its intended purpose. This safety standard would guide EPA in its risk-based safety assessment of new chemical substances and existing ones designated as high priority. Many criticized this bill as indistinguishable from TSCA’s existing standard. Hearings were held by the U.S. Senate Committee on Environment and Public Works (and its Subcommittee on Water and Wildlife) in 2013 and 2014, respectively, but no further action was taken on that bill.
In contrast, a bill introduced on April 15, 2010 proposed broad amendments to TSCA that would change nearly all of its core provisions. This bill, titled the Safe Chemicals Act (S. 3209), would require manufacturers to provide a minimum data set for each chemical they produce and would give EPA the authority to request additional information needed to make a safety determination. EPA would then need to prioritize the chemicals based on the data set and quickly take action on those clearly demonstrating high risks. Significantly, under this proposal, manufacturers would bear the burden of proving a chemical is safe to keep on the market, rather than the EPA. No action has been taken on this bill either since it was first introduced.
Just recently, two new bills were introduced to the Senate that proposed different reforms to TSCA. On March 10, 2015, Senators Tom Udall (D-NM) and David Vitter (R-LA), along with a bipartisan coalition, introduced the Frank R. Lautenberg Chemical Safety for the 21st Century Act (S. 697) (the Udall-Vitter Bill). Two days later, Senators Barbara Boxer (D-CA) and Edward Markey (D-MA) introduced the Alan Reinstein and Trevor Schaefer Toxic Chemical Protection Act (S. 725) (the Boxer-Markey Bill).
The Udall-Vitter Bill is touted as the result of compromises between industry, regulators, and environmental advocates. This proposal would create a single regulatory scheme to apply across the U.S. The proposal would define the safety standard for EPA regulation as "no unreasonable risk of harm to health or the environment . . . from exposure to a chemical substance" through the "intended, known, or reasonably foreseeable circumstances" of the chemical’s manufacture, processing, distribution, use, or disposal. This standard would guide EPA in its decision to take further regulatory action toward a chemical. However, EPA would no longer be required to include cost considerations when making its safety determination for a substance. Instead, EPA would make its determination based on the substance’s health effects alone. Costs would be considered after EPA decides how to regulate the substance, but EPA would not be required to prove it selected the least burdensome approach. Among other things, this bill would also mandate safety reviews for all high-priority chemicals, set deadlines for EPA evaluations and other actions, and add new requirements for confidential business information. One final change to note relates to state preemption. The proposal allows states to restrict a chemical only until EPA evaluates it; once EPA creates standards or regulations for the substance, any state restrictions would be pre-empted.
On March 18, 2015, the Senate Environment and Public Works Committee held a legislative hearing on the Udall-Vitter Bill. While many view the bill favorably, critics argue that it creates unrealistic and slower timeframes for chemical safety assessments. In particular, states have raised concerns about the elimination of co-enforcement provisions and the new preemptive effect of the proposal, arguing it precludes states from regulating dangerous chemicals. They argue the bill creates a "regulatory void" because it effectively blocks states from regulating a chemical where EPA has announced plans to begin reviewing its safety but has not completed the review or promulgated any regulations.
The preemption concern is one major item that the Boxer-Markey Bill attempts to address. The Boxer-Markey Bill starts with the premise that states are better positioned to protect the public from chemical risks. The Boxer-Markey Bill proposes that EPA actions have no preemptive effect on state actions at all. This bill also defines the safety standard to mean "reasonable certainty . . . that no harm to human health or the environment will result from exposure to a chemical substance under the intended or reasonably foreseeable conditions of use." The bill authorizes consideration of costs during the rulemaking process, but only when the annual effect on the economy exceeds $100 million, thereby essentially removing cost-benefit considerations from almost any rulemaking activities to restrict a chemical under this proposal. Other components of this bill include quicker safety review timeframes and a requirement that EPA act quickly to ban asbestos. Proponents of this bill argue it provides stronger safety standards.
While these debates continue, there is one point that all sides agree on: TSCA is long overdue for an overhaul. These new proposals and the attention they have elicited suggest that, at long last, TSCA reform may be on the cusp of becoming reality. What happens next will depend on whether lawmakers and other stakeholders from these competing proposals can come together to bridge the gaps between their plans and ultimately create a better TSCA moving forward.
