New Law Regulating Asbestos, Benzene and other Chemicals Reforms to the Toxic Substances Control Act
On Wednesday, June 22, 2016, President Obama signed into law bill H.R. 2576—the Frank R. Lautenberg Chemical Safety for the 21st Century Act—which amends the Toxic Substances Control Act (TSCA) to revise the process and requirements for evaluating and determining whether regulatory control of a toxic substance or chemical is warranted. The new law is the first significant reform to the Toxic Substances Control Act in the 40 years since its inception. It gives the U.S. Environmental Protection Agency (EPA) new authority to review and regulate toxic substances and chemicals, along with mandating that the agency update its catalog of existing toxic substances and chemicals and create a risk evaluation process.
The 1976 TSCA
The 1976 TSCA provided the EPA with authority to require reporting, record-keeping and testing requirements, and restrictions relating to toxic substances, chemicals, and chemical compounds. It addressed production, use, and disposal of specific toxic substances including asbestos, benzene, lead-based paint, radon, and polychlorinated biphenyls (PCBs).
At the time of its implementation in 1976, the TSCA created an inventory of chemicals in commerce. The TSCA implemented a program through which the inventory would be updated prior to new chemicals being manufactured. Through the program, the EPA was notified of the intent to manufacture a new chemical and it had 90 days to determine whether the chemical may present a risk and whether additional action should be taken. Companies submitting new chemical notifications were not required to develop any data regarding the new chemical. Additionally, the TSCA had no general requirement to test, prioritize, or address existing chemicals.
When significant risk was found with the use of or exposure to a chemical, the TSCA authorized the EPA to take a number of significant actions from requiring recordkeeping, recording or labeling about the possible risk, to enacting complete bans of the chemical. However, the EPA was required to show the chemical presented an unreasonable risk to human health or the environment and that the action taken to reduce the risk was the least burdensome option.
The Reformed TSCA now provides the EPA broad authority to prioritize, review, and regulate existing toxic substances and chemicals in U.S. Commerce within enforceable deadlines to keep programs operating at specified paces. It eliminates the requirement that the EPA must make a preliminary finding about risks before the EPA can require testing by manufacturers or processors. The bill does this by replacing the cost-benefit standard with a pure health-based safety standard. Thus, the EPA may now require the manufacturers or processors to develop information that is necessary for reviewing new chemicals, performing safety assessments or determinations, implementing control actions on chemicals, and establishing the priority of a chemical. The new bill also expands the EPA’s authority under the TSCA to collect fees from chemical manufacturers, importers, or processors for the next 10 years to achieve the goals of the TSCA. Authority to collect fees is conditioned on continued federal appropriations at certain levels.
This new law may result in the imposition of more stringent chemical assessment and testing requirements on companies manufacturing, exporting, and processing chemicals which could, in turn, lead to higher costs for these companies. Additionally, the new law’s requirement that the industry pay for a portion of the EPA’s chemical reviews may also result in higher costs for companies. However, the new law will hopefully create uniform standards to alleviate uncertainty over future chemical prohibitions impacting businesses.