In May, Senators Frank Lautenberg, D-NJ and David Vitter, R-LA introduced a bipartisan bill that would overhaul the Toxic Substances Control Act (TSCA). While the Senate has debated the concept of TSCA reform for several years now, the introduction of this bipartisan bill represents the start of a serious
conversation about reforming the nation’s primary chemical management law.
The Chemical Safety Improvement Act (CSIA) would introduce significant changes to TSCA, which is the only major environmental statute that has not been updated since its passage. These changes would have wide-ranging impacts for every aspect of the chemical industry, including manufacturers, importers,
processers, distributers, users, and retailers of chemicals and finished goods that incorporate chemical substances.
Although there are certain similarities between the CSIA and the Safe Chemicals Act previously introduced by Senator Lautenberg, there are also some important differences that alleviate some industry concerns. A summary of the key provisions and significant distinctions between the CSIA and the Safe
Chemicals Act is provided below. Although the CSIA will not be the last word on TSCA reform, it no doubt provides the starting point that will guide this important discussion in the coming months and years. Now is the time for interested stakeholders to get involved.
A Use-Based Safety Standard
Like the proposed Safe Chemicals Act, the CSIA includes a prioritization process through which the Environmental Protection Agency (EPA) would designate high and low priority chemicals. Once designated as a high priority chemical, however, EPA must take into account potential exposures and intended uses for the substance in determining whether the substance is safe. This focus on intended uses appears for the first time in the CSIA.
EPA’s Study of Existing Chemicals Does Not Foreclose Manufacture
In addition, unlike the previously proposed Safe Chemicals Act, during EPA’s prioritization and safety determination evaluations, chemicals under review may remain in commerce. EPA’s priority list would include, at the least, any chemicals for which EPA has already begun a risk assessment (ostensibly
including EPA’s Work Plan chemicals). The initial prioritization of chemicals would be due within one year of the passage of the CSIA.
Inactive Status for Existing Chemicals Affects Prioritization, not Future Manufacture
The CSIA distinguishes between active and inactive existing chemicals, and prevents EPA from further regulating inactive substances unless EPA can demonstrate both a high hazard and a high risk of exposure. While the Safe Chemicals Act created significant burdens on manufacturers who wanted to restart manufacturing substances that had been deemed inactive, the CSIA requires only a simple notice to EPA. EPA will, however, take the new, active status into account in re-evaluating the prioritization of that substance.
Fewer New Chemicals Data Requirements
The Safe Chemicals Act would have created significant additional information development burdens on manufacturers of new chemical substances, requiring the submittal of a minimum data set to EPA to assist the Agency with its risk assessment. Under the CSIA, however, only if the Agency concludes that it cannot
make a safety determination based on existing data (including data about similar substances) would manufacturers be required to create new data.
Expanded Opportunities for Exemptions
The CSIA clarifies the opportunity for exemptions from regulation for substances when no feasible alternatives exist. Specifically, the CSIA makes clear that an alternative could be infeasible from an economic, technical, or efficiency standpoint. The CSIA also clarifies that exemptions are
available any time an alternative would not “materially reduce risk to health or the environment,” rather than the more vague “safer” standard used in the Safe Chemicals Act.
Protections for Confidential Business Information Narrowed
While the CSIA reinstates certain Confidential Business Information (CBI) protections eradicated by the Safe Chemicals Act, significant limitations remain in this version. For example, the CSIA includes the same broad, vague provision allowing EPA to release CBI whenever EPA “determines that disclosure is necessary to protect human health or the environment.”
Limited Preemption of State Regulation
Finally, in a significant departure from the Safe Chemicals Act, the CSIA includes substantive preemption provisions. Specifically, the Act creates a moratorium on new state restrictions on substances that have been designated as either “high priority” or “low priority” by EPA until the risk assessment is complete and a safety determination issued. More importantly, once EPA makes the safety determination and issues any restrictions and/or bans with regard to a chemical substance, any prospective andexisting state regulations with regard to that chemical substance are preempted.
Even if the CSIA does not pass in its current form, it is clear that an overhaul of TSCA is imminent. Such reform will have potentially significant impacts for every aspect of the nation’s chemical sector. As a result, now is the time for interested stakeholders to grab a seat at the table.
For more information about the Chemical Safety Improvement Act of 2013, please the post’s authors or Bert Peña of the Federal Affairs Group of Troutman Sanders Strategies.