TSCA Reform Legislation ? A Possibility in 2016

On December 17, 2015, The Frank R. Lautenberg Chemical Safety for the 21st Century Act,  S 697 passed unanimously out of the Senate, with 60 co-sponsors officially signed on to the bill. The bipartisan bill was introduced on March 10, 2015 by Senators Tom Udall (D-NM) and David Vitter (R-LA) and was approved by the Senate Environment & Public Works (“EPW”) Committee on April 28, 2015. On June 23, 2015, the US House of Representatives passed the TSCA Modernization Act of 2015 (H.R. 2576) — a historic milestone in the effort to reform the nation’s chemical control law on two levels. This vote was the first ever by the entire House chamber on Toxic Substances Control Act reform, but it is also remarkable to see such broad support for a piece of environmental legislation. HR 2576 will provide the EPA greater ability to take regulatory action on chemicals under Section 6 of TSCA by eliminating the current TSCA requirement that EPA must select the “least burdensome” option for action after the agency has determined that a chemical presents (or will present) an unreasonable risk of injury to health or the environment under its intended conditions of use. The legislation provides that, before restricting (or banning) a chemical substance, the EPA must conduct a “risk evaluation” to determine whether the substance presents an unreasonable risk of injury. If the EPA determines that a chemical substance presents an unreasonable risk based on the risk evaluation (without consideration of costs or “other non-risk factors”), the EPA would be required to issue a proposed rule setting forth regulatory action on the substance within one year after the risk evaluation is published, with the final rule to be issued within two years. In publicizing a rule to restrict or ban a chemical substance or mixture under Section 6, the EPA would have to consider and publish a statement that addresses “the effects of the chemical substance or mixture on health and the magnitude of the exposure of human beings,” as well as its effects on the environment and the magnitude of environmental exposure; the benefits of the substance or mixture; and the “reasonably ascertainable economic consequences” of the rule. Any restrictions imposed on a substance or mixture must be cost-effective, except where the EPA determines that additional requirements “are necessary to protect against the identified risk.”  EPA also must determine whether “technically and economically feasible alternatives” to the substance or mixture “will be reasonably available as a substitute.” HR 2576 provides that the EPA must exempt any replacement parts designed before the Section 6 rule is promulgated unless the EPA determines that the parts “contribute significantly to the identified risk, including identified risk to identified potentially exposed subpopulations.” HR 2576 also limits the EPA’s ability to restrict articles by providing that it may do so “only to the extent necessary to protect against the identified risk” presented by a chemical substance or mixture in the article. The House-passed bill also contains provisions that will:

• Preempt state chemical regulations
• Require the EPA to publish a list of chemicals that are considered to be persistent, bioaccumulative and toxic (PBTs) within nine months after enactment of the bill
• Allow the EPA to share confidential business information (CBI) with state, local and tribal government officials and health care professionals under certain conditions
• Provide EPA with the authority to establish fees that are sufficient and not more than reasonably necessary

The Senate bill, designated as S. 697, passes the full Senate; however, as a substitute for H.R. 2576, the TSCA reformed legislation that had been approved by the US House of Representatives on June 23, 2015. As such, the bill passed by the Senate is now designated as H.R. 2576, but its text is that of the Senate EPW bill (with some changes). Among many significant changes to the current TSCA law, the Senate-passed bill will:

• Require the EPA to evaluate chemicals (both new and existing chemicals) based on a safety standard and determine whether they present an unreasonable risk of injury “under the conditions of use”
• Prohibit consideration of costs or other non-risks factors in chemical evaluations
• Require the EPA to consider vulnerable subpopulations in evaluating chemicals
• Allow companies to ask the EPA to review a chemical
• Give the EPA authority to issue administrative orders to require testing of chemicals
• Eliminate the “least burdensome” requirement for chemical regulations, making it easier for the EPA to restrict — or ban — chemicals
• Preempt state chemical regulations under certain conditions
• Put limits on confidential business information (“CBI”) claims and allow the EPA to share CBI with states
• Allow the EPA to charge higher fees for chemical reviews

Because there are significant differences between the Senate and House bills, the two bodies must agree on a compromise measure before any TSCA reform legislation becomes law. Senate and House leaders are discussing whether a formal conference committee process will be needed or whether the differences between the bills can be reconciled in a more expeditious fashion. Sign up to receive the most up-to-date regulatory and legislative information about specialty imaging.