On June 7, by a voice vote of the Unites State Senate agreeing to changes approved by the House of Representatives on May 24 (voting 403 for and 12 against), Congress has passed the “TSCA Modernization Act of 2015” that will amend the Toxic Substances Control Act, sending the 66 page bill to the President for his signature. The President is expected to sign the bill this week.
HR 2576 greatly expands the ability of the Environmental Protection Agency to evaluate and regulate chemicals.
TSCA was enacted in 1976 to protect the environment and the public’s health against risks posed by chemicals in materials in commerce. Forty years later, there is general agreement that the law has not kept pace with the marketplace including a patchwork of state laws that were effectively trumping this Federal law, and the field was made more complicated by non governmental programs like the LEED green building rating system that incorporates Materials & Resources credits including building product and material ingredient disclosure and optimization.
Some perspective is likely appropriate because of the 85,000 chemicals on the TSCA inventory there were only five existing chemicals in the stream of commerce before TSCA went into effect that EPA deemed harmful and just four new chemicals that came to market after 1976 that have since been banned under the existing law.
It has been suggested that the bipartisan effort by Congress acting on this substantive legislative bill is the big news in and of itself. And while compromise on Capitol Hill is a big deal, this bill greatly expands the authority of EPA and will have implications not just for the chemical manufacturers, processors and importers, as TSCA had in the past, but now also for many more businesses. The top five takeaways for business are:
- The scope of the law is widened with a new safety standard providing “that the relevant chemical substance or significant new use is not likely to present unreasonable risk of injury to health of the community without consideration of costs or other non-risk factors.” The decades old cost benefit analysis is now altered throughout TSCA where “unreasonable risk” was used that it now excludes consideration of costs and other nonrisk factors, either by striking “unreasonable” or adding “without taking into account cost or other non-risk factors.”
- All existing chemicals will now be subject to possible future regulation in a bifurcated process. The first step will consist of an EPA risk evaluation and a second step for risk management. Risk evaluations are to be conducted on each chemical EPA designates as a high-priority substance. Six months after enactment, EPA must be conducting risk evaluations for 10 chemicals drawn from its Work Plan. The new law sets a 3 year deadline for all risk evaluations.
- With new chemicals, today a business is generally able to start producing a new chemical at the end of a 90 day review period, unless EPA finds the chemical “may present an unreasonable risk.” In the future EPA must review and affirmatively make a risk determination for all new chemicals. And if EPA determines that a new chemical presents an unreasonable risk or EPA lacks sufficient information to make a reasoned evaluation or the chemical may present an unreasonable risk or is produced in large amounts and results in large releases or exposures, EPA must impose restrictions to the extent necessary to protect against any such risk.
- Preempting state laws, that vary across the country, with a single Federal edict (whether good or not so good) was the reason that business supported amending TSCA. And while the preemption provisions are complex, the bill largely accomplishes that. The bill’s preemption applies to state restrictions on a chemical, but not to requirements for reporting, monitoring or disclosure. And most significantly, a state cannot now prohibit all use of a chemical in the state, except via co enforcement with EPA or getting a waiver from EPA. State actions taken before August 1, 2015, or taken under laws in effect on August 31, 2003, are exempted from preemption. And the bill preserves state and private party rights, causes of actions, and remedies from being preempted by EPA.
- Costs to some business will be significant. Today EPA can only charge fees to cover testing requirements for new chemicals, but now EPA may collect fees for both new and existing chemicals, as well as those designated as high-priority. But the dollars paid to EPA will be small when compared to the legal fees and hard science costs to businesses in compliance. And there is uncertainty associated with this much bigger regulation that impacts many more businesses, including by way of example, costs across industries from the probable banning of asbestos, as is anticipated under this new law.
Also significantly, this new enactment should portend revisions to LEED materials credits (including LEED’s use of EPDs and HPDs that do not include toxicity and as such are inconsistent with this new law) and other nongovernmental standards pegged to federal laws.
This law firm in concert with our team of biologists and chemists maximizing our hard science knowledge have been and continue to work with a broad breadth of business interests to determine how they will be impacted by this sweeping new TSCA. If we can assist your business in appreciating and taking advantage of federal regulation of chemicals, do not hesitate to give Stuart Kaplow a call.