IIAR

The Toxic Substances Control Act (TSCA), signed into law in 1976, provides the Environmental Protection Agency (EPA) the authority to control potentially dangerous chemicals in U.S. commerce. The act gives EPA the authority to gather and disseminate information about production, use, and possible adverse effects to human health and the environment of existing chemicals, and to issue “test rules” that require manufacturers and processors of potentially dangerous chemicals to conduct and report the results of scientific studies regarding the chemicals.

Under TSCA, EPA regulates both existing chemicals and new chemicals proposed for use in the United States. For new chemicals, EPA is required to conduct pre-market screening and regulatory tracking. Should EPA determine that a chemical poses an unreasonable risk, the agency must initiate rulemaking to address such risks by regulating various aspects of the chemical from manufacturing to processing, use and disposal. TSCA applies to both natural and synthetic chemicals. Ammonia is one of the thousands of chemicals included in EPA’s Chemical Substance Inventory as a part of its TSCA activities. Since its enactment, the legislation has been amended five times to address specific chemical concerns such as asbestos, radon, lead, formaldehyde and environmental issues in schools. While provisions have been added to the statute, the core underlying provisions in TSCA have remained unchanged since 1976.

EFFORTS TO MODERNIZE TSCA

Over the last few years momentum has been growing for the modernization of TSCA. Industry groups became increasingly concerned that technological advances and additional science-based information was not being fully utilized under the old TSCA framework. Industry also was frustrated by the increased focus by states to take chemical safety regulations into their own hands creating a patchwork of regulations that are extremely difficult for companies to navigate. At the same time, consumer safety advocates have expressed concerns that antiquated TSCA regulations do not provide EPA with adequate authorities to protect the public.

In response to the debates about modernizing TSCA, the American Chemistry Council developed the following list of principles to guide the updating of the statute:

1. Chemicals should be safe for their intended use.
2. EPA should systematically prioritize chemicals for purposes of safe use determinations.
3. EPA should act expeditiously and efficiently in making safe use determinations.
4. EPA should complete safe use determinations within set timeframes. Companies that manufacture, import, process, distribute, or use chemicals should be required to provide EPA with relevant information to the extent necessary for EPA to make safe use determinations.
5. Potential risks faced by children should be an important factor in safe use determinations.
6. EPA should be empowered to impose a range of controls to ensure that chemicals are safe for their intended use.
7. Companies and EPA should work together to enhance public access to chemical health and safety information.
8. EPA should rely on scientifically valid data and information, regardless of its source, including data and information reflecting modern advances in science and technology.
9. EPA should have the staff, resources, and regulatory tools it needs to ensure the safety of chemicals.
10. A modernized TSCA should encourage technological innovation and a globally competitive industry in the United States.

With the growing recognition for the need to update TSCA, Congress has explored a number of options for modernizing the act. In 2011, the late Senator Frank Lautenberg (D-NJ) introduced the Safer Chemicals Act. The bill was approved by the Environment and Public Works Committee on a party-line vote. Republicans, supported by industry, opposed the bill because they believed the legislation presented an unworkable safety standard, failed to adequately address the issue of state preemption and would put domestic industry at a competitive disadvantage on the global market. As late as August 2013, the prospects of a bipartisan solution to modernizing TSCA seemed unlikely. However, in the weeks before his death, Senator Lautenberg began working with the Ranking Republican of the committee, David Vitter (R-LA) on a bipartisan compromise. These efforts led to the introduction of the Chemical Safety Improvement Act (CSIA) of 2013.

CHEMICAL SAFETY IMPROVEMENT ACT OF 2013

S. 1009, the Chemical Safety Improvement Act of 2013 was introduced on May 22, 2013 by Senators Lautenberg and Vitter along with 14 bipartisan cosponsors. The bipartisan compromise addresses the 10 principles of modernization advanced by the ACC and has received support from a broad range of industry and consumer interests groups.

CSIA would establish a new safety standard of “no unreasonable risk of harm to human health or the environment will result from exposure to a chemical substance” under “intended conditions of use.” The new standard strives to achieve a balance between risks and benefits. The bill states that EPA must rely on robust scientific evidence and balance the mutual goals of promoting the safety of American consumers and preventing harm to American innovation, manufacturing, and the economy. EPA would be required to use the best available science and science-based criteria when assessing chemicals.

The legislation would require EPA to establish a process to categorize chemicals as high or low priority for safety assessment and determination. High priority chemicals would be subject to a safety assessment that would include information about potential hazards, use and exposure and vulnerable populations. Assessments would be based solely on considerations of risk. EPA would then issue a safety determination based on the intended use of the chemical. If the safety standard is not met by a chemical, EPA would be required to impose regulations to mitigate the hazards. This process would be subject to public notice and comment, adding an additional measure of transparency not found in the current process.

Another important aspect of CSIA is the strengthening of preemption rules. Under the legislation, certain EPA determinations (both retrospective and prospective) would preempt state regulations. Preemption includes EPA’s designations of chemicals as high or low priority. States would have the opportunity to apply for a waiver, but that process would be more transparent, require public notice and comment and be eligible for judicial review.

STATUS AND PROSPECTS

As of July 2013, the number of cosponsors of CSIA has grown to 25 Senators with a balanced mix of Democrats and Republicans. While there is strong bipartisan support for the legislation, there are some in the Senate who have concerns with the compromise bill. Senator Boxer (D-CA), Chairwoman of the Environment and Public Works Committee, has expressed her opposition to certain aspects of the bill. In particular, Boxer does not like the strong preemption language in CSIA. California has been one of the most active states to develop its own chemical safety regulations and Boxer is reluctant to limit her state’s ability to create its own set of standards.

The death of Senator Lautenberg shortly after the introduction of the bill has also complicated the situation surrounding the legislation. Lautenberg has long been the most active champion for TSCA modernization. Some speculate that his death makes it easier for Boxer to impose her desires to modify the carefully crafted compromise between Lautenberg and Vitter. Others believe that Lautenberg’s death gives Senators added incentive to pass his last piece of legislation to honor his work on the issue.

The Senate is seen as the chamber leading the way on TSCA modernization. Legislation similar to CSIA has not been introduced in the House of Representatives, but it is expected that if the Senate approves the CSIA with broad bipartisan support that the House would likely bring up companion legislation.

As members of Congress contemplate the next steps towards TSCA modernization, the American Alliance for Innovation (AAI), a group of more than one-hundred trade associations representing a broad spectrum of American businesses throughout the manufacturing and distribution supply chain is rallying in support of the CSIA. The AAI coalition, led by the American Chemistry Council was formed to actively engage in efforts to better understand and address legislative and regulatory chemical management issues at the federal, state, and local levels. TSCA modernization has become a high priority for the AAI and the coalition has rallied in support of the CSIA. IIAR has recently joined AAI and has cosigned statements of support for the bipartisan compromise refl ected in the CSIA. IIAR will continue to actively participate in the AAI and advocate for the implementation of a more balanced and science-based framework for chemical safety regulations.