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TSCA Modernization Act of 2015

October 19, 2015 - Kestrel Management

The Toxic Substances Control Act (TSCA) was passed in 1976 as the nation’s primary chemical management law. TSCA was designed to ensure that products are safe for intended use by providing the USEPA authority to review and regulate chemicals in commerce.

Despite its intention, TSCA has proven to be rather ineffective in providing adequate protection and in facilitating U.S. chemical manufacturing and use. More than 80,000 chemicals available in the U.S. have never been fully tested for their toxic effects on health and the environment. In fact, under TSCA, the USEPA has only banned five chemicals since 1976.

The regulatory landscape has changed considerably since TSCA’s inception—becoming fractured and contradictory in many ways. Advances in science and technology have further complicated the application of TSCA. So finally, on June 23, 2015—almost 40 years since the Act’s inception—TSCA reform is taking hold, as the U.S. House of Representatives passed the TSCA Modernization Act of 2015 (H.R. 2576) by a 398-1 vote.

H.R. 2576 Objectives

With nearly unanimous support, H.R. 2576 is designed to build confidence in the U.S. chemical regulatory system, protect human health and the environment, and address the commercial and competitive needs of the U.S. chemical industry and the national economy.

Specifically, the Energy and Commerce Committee states that the objectives for H.R. 2576 are to:

  • Modernize TSCA to improve chemical safety, while encouraging continued innovation and economic growth
  • Provide public greater confidence in the safety of American-made chemicals and the products that contain them
  • Facilitate interstate and global commerce

Proposed Improvements

H.R. 2576 specifically targets significant improvements to TSCA Sections 3 (Definitions), 4 (Testing), 6 (Existing Chemicals), 9 (Relationship to Other Federal Laws), 14 (Confidential Business Information), 18 (Preemption), 26 (Administration).

Notably, H.R. 2576 repeals one of the most troublesome components of TSCA—the requirement that restricting chemicals must use the “least burdensome requirements”. The bill requires the USEPA to select existing chemicals for risk evaluation based on whether they present an unreasonable risk of injury to human health or the environment and clearly defines the term “potentially exposed subpopulations”. The Agency can also require toxicity testing by an “order” versus the complicated process of formal rulemaking.

The USEPA is then required to screen chemicals for persistence, bioaccumulation, and toxicity; publish a list of those; and put them on the fast track for regulation so the chemical substance/mixture no longer presents unreasonable risk. The bill further states that the USEPA must initiate at least 10 risk evaluations per year and that risk evaluations must be completed within three years.

Correspondingly, any risk management proposed rule that comes out of the risk evaluations must follow within one year and a final rule must be published within two years. In essence, H.R. 2576 creates a risk-based standard for determining chemical safety.

In addition to these more substantive changes, H.R. 2576 addresses the following:

  • Confidential Business Information (CBI): H.R. 2576 maintains protection of CBI and allows access to certain government officials and health care professionals subject to the same penalties for unauthorized disclosure.
  • User Fees: User fees will be earmarked for a special TSCA Service Fee Fund used only to administer the TSCA program. The bill also pledges that fees will be “sufficient and not more than reasonably necessary” and lower for small business.
  • Preemption: Once the USEPA makes a final decision on a chemical based on the risk evaluation, the federal Agency’s decision preempts state laws on that chemical (exceptions apply).

The Path Forward

It is now up to the Senate to either take up the House bill or its own bill (S. 697) to help ensure product safety and consumer confidence. While the Senate bill differs from the House bill in structure, length, and style, the foundation remains the same:

  • Provide the USEPA the tools to ensure chemicals in commerce are safer for consumers
  • Create a new system for the USEPA to evaluate and manage risks associated with chemicals already on the market
  • Set deadlines for the USEPA to take action

Submitted by: Liz Hillgren

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