On Tuesday, May 24, compromise legislation to reform the Toxic Substances Control Act overwhelmingly passed the House of Representatives. Last week, the House and Senate announced the compromise legislation with the goal of reaching the President’s desk for signature before the Memorial Day recess. That goal now appears to be in reach, with the White House already signaling plans to approve the legislation by calling it a “clear improvement” and a “historic advancement” for chemical safety.
The final bill will significantly boost the Environmental Protection Agency’s authority to regulate new and existing chemicals in commerce by allowing the Agency to regulate chemical substances based on a determination of whether the substance presents an unreasonable risk, without any consideration of costs. Instead, EPA is only required to consider costs in developing the approach to regulation after deciding a substance should be regulated. The bill also:
- Establishes a prioritization process by which EPA will decide which chemicals are “high priority.” EPA is required to start with its 2014 work plan chemicals.
- Expands EPA’s authority to require testing, including through issuance of administrative orders.
- Sets deadlines for EPA’s actions, including development of its prioritization process within 1 year of enactment; identification of at least 20 high priority and low priority substances within 3 years; and an additional 5 substances in each category within 5 years of enactment.
- Requires up-front substantiation of confidential business information and contemplates additional access to confidential information by states, medical professionals, and first responders.
- Creates a new funding mechanism for EPA to collect up to $25 million in fees from regulated companies each year to support its efforts.
Most significantly, the bill has detailed, complicated preemption provisions. These preemption provisions are the key to industry’s support for this legislation, and should help to establish a more uniform, nationwide approach to chemical regulation.
- EPA’s final decisions regarding the safety or regulation of a chemical will preempt existing and future state regulations that conflict with EPA’s action.
- States must “pause” from imposing new restrictions on a substance while EPA conducts its risk assessment; this temporary preemption expires if EPA does not act within 3.5 years from initiating the risk assessment.
- Any state law, rule, or restriction on a chemical in place before April 22, 2016 and any state law regarding chemicals enacted before August 31, 2003 will not be preempted by enactment of the legislation.
While industries that use, process, or manufacture the 90 substances on EPA’s 2014 work plan – including bisphenol A, nonylphenols, and phthalates – will be most directly and quickly affected by this legislation, other industries will need to watch EPA’s implementation of its new broad authority closely to ensure that precedent that will be set over the next several years does not negatively impact their businesses.