On June 7, 2016 the United States Senate passed the long awaited update to the Toxic Substances Control Act (TSCA), which had been passed by the United States House of Representatives at the end of May 2016. The bill proposes making several critical changes to TSCA. One of the most important changes is to require the federal Environmental Protection Agency (EPA) to review existing and new chemicals in a more thorough and clear process. Regarding review of existing chemicals, unlike the existing TSCA, this new process involves two parts. First, when deciding whether a regulation of a chemical is warranted, EPA will be tasked with looking at its hazards and exposures without considering cost or other non-risk factors. If that analysis indicates that a chemical’s use presents an unreasonable risk, EPA will then turn to the second step to determine whether a rulemaking is required to manage the risk. In this second step, EPA will be required to issue a risk management rule, ranging from minimum labeling or notice requirements to an outright ban. This step will require EPA to consider the chemical’s health and environmental effects as well as the costs of implementation. EPA must also consider the feasibility of alternatives. This new approach is in contrast to the “least burdensome” approach used in the existing TSCA.
When reviewing new chemicals and new uses, EPA now can make four determinations whether the new chemical or new use: (1) presents an unreasonable risk (in which case EPA must immediately take regulatory action under current law subsection (f)); (2) may present an unreasonable risk, is made in large quantities, or there is not enough information to make a determination (which would trigger order requirements under subsection (e)); (3) is likely not to present a risk under the conditions of use (in which case manufacture may begin); or (4) is a subset of option 3, a low hazard, and manufacture may begin. As in the existing TSCA, the manufacturer of the chemical has 90 days to send EPA a notice and supporting information alerting EPA of its intent to manufacture. If EPA takes no action within those 90 days, but no later than 180 days under the new law if additional time is need, then manufacturing of the chemical can proceed.
Under the new law, EPA is tasked with reviewing all existing chemicals in its inventory using the new process. EPA will have a year after the law takes effect to determine which chemicals are high priority. Importantly, regulation of individual chemicals under this act will preempt state regulations introduced after April 22, 2016, subject to a number of exceptions. The modified law will also handle fees in a different manner, allowing fees collected under one provision to be used to work on the same chemical under testing, evaluation and regulation, and information protection provisions.
Since the both the House and Senate have passed the bill, it is now awaiting President Obama’s signature to become law. Once signed into law, EPA will be tasked with implementation.