While consumers typically believe that anything they can buy in the store has been government tested for safety, that's not always the case. The Toxic Substances Control Act (TSCA) has been in effect and essentially unchanged since 1976. The TSCA as it stands today allows chemicals to be used in consumer products without being proven safe, and it is seen by many as an outdated and ineffective regulatory scheme. In March 2015, draft bi-partisan chemical safety legislation aimed at amending the TSCA to better protect the public passed a Senate vote, and earlier this month, a slightly tweaked draft cleared its House subcommittee. The draft legislation is referred to as the Udall-Vitter bill.
If passed into law, the reforms to the TSCA would:
- Require safety reviews for all chemicals in commerce (including on those "grandfathered" under the current federal law) depending solely on risk to human health and the environment;
- Require the EPA to review and approve the approximately 1,000 new chemicals that enter the market each year before they are manufactured;
- Require the EPA to take into consideration the latest science to determine impacts on human health and the environment;
- Require chemical companies to contribute to the cost of regulation;
- Eliminate current "least burdensome" requirement for regulating a chemical;
- Lower the bar for when the EPA can designate a chemical "high priority;"
- Impose strict liability on chemical importers;
- Require the EPA to look to "scientifically reliable alternatives" before conducting any new animal tests;
- Require the EPA to leave cost aside in determining the safety of chemicals in the marketplace;
- Preserve private right of action for negligence;
- Require the EPA to consider impact of chemicals on vulnerable populations (elderly, children, pregnant women, chemical workers); and
- Sets 15 deadlines for EPA action as well as limits on Confidential Business Information (CBI) claims.
The bill also takes into account the rights of the states. It includes several provisions that are state-friendly, including: (1) allowing states to restrict a chemical until and unless the EPA takes up the same chemical and addresses the same issues; (2) allowing a waiver process for states to set different regulations than the EPA; (3) grandfathering-in state chemical regulations enacted before 8/1/15; and (4) protecting state requirements for air and water quality and waste treatment and disposal. However, once the EPA makes a final decision on a chemical, the decision will apply in all states.
TSCA Section 8, which requires chemical manufacturers and processors to maintain records and report data has not yet been amended, but likely will be as the bill moves to full House committee.
As far as industry input, the bill allows industry to petition the EPA to designate certain chemicals for assessment and determination. In that case, the company making the request would foot 100% of the costs of the assessment. Chemicals petitioned by industry cannot exceed 25-30% of the EPA's "high priority" list, which is supposed to allow the EPA to effectively manage its resources. Although the bill promises to impose additional safeguards while still allowing for industry innovation, the tightened regulations will not be considering economics. Therefore, if the legislation is passed, it may be best for manufacturers to be proactive about petitioning for any chemicals with which they routinely deal.
For More Information
In the meantime, Polsinelli will watch for any updates on the draft bill, and report out any new information. For questions on the proposed reforms, please contact the author or your Polsinelli attorney.