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Compromise Paves Way for Long-Awaited Reform of Toxic Substances Control Act

Thursday, May 26, 2016
Sandler, Travis & Rosenberg Trade Report

Lawmakers have reached a compromise agreement on the first significant overhaul of the Toxic Substances Control Act since its enactment 40 years ago. The conference report was approved May 24 by the House of Representatives and could be passed by the Senate later this week. The White House has said it strongly supports the measure.

TSCA was created to give the Environmental Protection Agency the authority to require reporting, recordkeeping and testing of chemicals and to restrict the importation, production, use and disposal of substances determined to pose a risk to health or the environment. However, since the law’s enactment the EPA has only been able to effectively require testing of a few hundred of the chemicals in use and has encountered significant barriers in attempting to restrict or ban certain chemicals or uses.

In response, the compromise Frank R. Lautenberg Chemical Safety for the 21st Century Act gives the EPA greater authority to identify chemicals as posing a risk, request additional information or testing, and impose restrictions or outright bans.

Regulation of Existing Chemicals. All chemicals in commerce will be subject to a scientific risk evaluation, taking into account hazards and exposures but not cost or other non-risk factors, based on their designation as high or low priority. Exporters to the U.S. market should review the chemicals in their supply chains to identify those that may be designated as high priority.

The EPA must restrict the use of any chemical substance it finds to present an unreasonable risk unless the substance qualifies for a critical use exemption. Regulatory options include minimum labeling or notice requirements, restrictions on specific uses, and phase-outs or bans. In selecting an option the EPA must consider the chemical’s effects on health and the environment, the chemical’s benefits, and the economic consequences of the regulation, including for the national economy, small business and technology innovation. When deciding whether to ban or restrict a chemical, the EPA must consider the availability of feasible alternatives.

Regulation of New Chemicals. The EPA must review, evaluate the risk posed by, and choose any necessary regulatory option for new chemicals within clear and enforceable deadlines. A new chemical may not be commercially produced until the EPA rules on it and cannot be produced without complying with EPA restrictions.

Chemical Testing. The bill maintains the EPA’s authority to require testing of new and existing chemicals under a wide variety of circumstances so long as (a) the agency has a reasonable basis for concern about the chemical, (b) the agency lacks information that only new testing can address, and (c) the new testing is mandated by rulemaking and subject to notice and comment. The bill also makes it easier for the EPA to request additional testing or safety data.

Chemical Reporting. The EPA’s inventory of all chemicals that have ever been on the U.S. market is updated and industry nomenclature conventions are codified.

Trade Secret Protection. TSCA provisions governing confidential business information (trade secrets) are significantly changed. There will be a presumption that information regarding chemicals will be public unless a company is able to substantiate justification for CBI protection. In such cases protections will expire after ten years unless resubstantiated.

Preemption. The EPA’s final decisions will preempt all existing and future state laws that restrict chemicals or are in conflict with EPA action to create uniform regulations for the regulated community across the country. Any state prohibition or restriction of a chemical enacted before April 22, 2016, and any other state law enacted before August 31, 2003, will not be preempted.

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