TSCA Reform Bill Signed Into Law

On June 22, 2016 President Obama signed into law the Frank R. Lautenberg Chemical Safety for the 21st Century Act, more commonly known as the “Toxic Substances Control Act  Reform” bill. The bill strengthens what environmental commentators considered to be one of the weakest environmental protection laws on the books. The bill revamps the Toxic Substances Control Act of 1976 (“TSCA”) by allowing the Environmental Protection Agency (“EPA”) to regulate existing chemicals while also allowing EPA to propose regulations that would regulate the introduction of new chemicals.  

TSCA reform has been contemplated since the current administration arrived in Washington. In 2009, the EPA announced core principles for reform of chemical review and management. Highlights from these principles included:

  • Reviewing chemicals against risk-based safety standards based on sound science;
  • Providing EPA with the authority to take risk-management actions when chemicals fail to meet the established standards, with flexibility to take into account sensitive subpopulations, costs, social benefits, equity and other relevant considerations;
  • Provisions in legislation to encourage transparency in the process and provide for public access to information; and
  • Providing EPA with a sustained source of funding for implementation of new regulatory schemes.

This bill accomplishes many of EPA’s previously stated goals.

The TSCA reform bill incorporates the following changes to the 1976 Act:

  • EPA will have the authority to regulate chemicals that are already on the market. Under the 1976 Act, EPA was prevented from regulating existing chemicals.
  • Chemical review is expedited, as EPA will be required to identify, at a minimum, ten chemicals considered “high priority” within 180 days of enactment.
  • Existing State regulations will remain intact. Should EPA designate a chemical as “high priority,” states would be precluded from establishing new restrictions on the chemical regulated by EPA.
  • Toxicity testing may be required through administrative orders as opposed to formal rulemaking.
  • Notice must be provided to EPA prior to the production of new chemicals. EPA has 90 days to review such notice.
  • Chemical manufacturers and other companies will be required to pay fees for EPA risk reviews of chemicals.

EPA is mandated to update its inventory of existing chemicals within 180 days of enactment, and to create a new risk-based screening process for all chemicals within one year of enactment. The amendments regarding EPA’s new authority to regulate existing chemicals are effective immediately. Companies can now nominate a chemical for EPA to review, and EPA must do so if the company pays for the cost of the review.

Companies should review their operations to determine what chemicals are currently in use, and what chemicals are planned for future use, in beginning to prepare for implementation of this bill. Companies within all industry sectors are likely to be impacted by this bill, as EPA is prepared to implement new regulations for both existing and new chemicals.

This article was prepared by L. Marissa Grace, Steptoe & Johnson PLLC. Special thanks to Andrew Skeens, West Virginia University College of Law 2017, for his assistance in the preparation of this article.

Marissa Grace focuses her practice in the area of environmental law.
 
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