After years of effort, comprehensive legislation to reform the Toxic Substances Control Act (TSCA) passed the House of Representatives on May 24, 2016. The Frank R. Lautenberg Chemical Safety for the 21st Century Act is expected to pass the Senate the week of June 6. President Obama is expected to sign the legislation shortly thereafter. At that point, the Environmental Protection Agency (EPA) will begin its implementation of the new TSCA.
This alert first highlights key ways in which passage of TSCA amendments will impact industry. Next, it outlines the key changes that the legislation will make to TSCA. It then identifies those provisions of the bill as passed by the Senate in December 2015 that are retained in the bill as passed by the House on May 24 (thus expected to remain in the final Senate-passed version) and those provisions that are changed. Finally, it considers what is likely to happen in the early days of implementation of the new TSCA.
Note: Section references in this alert refer to TSCA as it will be amended by the legislation.
How Passage of TSCA Reform Legislation Will Affect Industry
Alone among major environmental statutes, TSCA had not been significantly amended since its enactment in October 1976, almost 40 years ago – until now. During much of that time, EPA has regarded TSCA’s principal control provision, section 6, as unworkable. As a result, EPA has not proposed any rulemaking under section 6 in 25 years, ever since a court invalidated the EPA ban on asbestos in 1991. Other aspects of TSCA have also shown their limitations.
Once enacted, this legislation will amend section 6 to make it much easier for EPA to evaluate and, if appropriate, regulate chemicals. The bill contains provisions mandating that EPA identify substances that are high priorities for risk evaluations; evaluate the health and environmental risks of those substances; decide, without regard to cost or other non-risk factors, whether a high-priority substance presents an unreasonable risk; and regulate those substances found to present an unreasonable risk under the conditions of use. All of these steps are subject to tight time deadlines. EPA must meet some quotas in the first five years. This means that industry can expect EPA to review more chemicals, to review them more systematically and thoroughly, and to regulate those chemicals that it finds to be in need of regulation.
