A bill updating the Toxic Substance Control Act (TSCA) was signed into law on June 22, 2016. The purpose of this bill was to strengthen the TSCA, which had not been altered for the past twenty years. The update makes it possible for the federal government to test industrial chemicals. It will now be able to have a ban placed on asbestos, which has been part of public commerce and designated a lethal carcinogen.
Significant Features
Some of the updates to the TSCA include mandating safety reviews for all chemicals that are part of active commerce. It makes safety findings prior to new chemicals being permitted on the market a requirement. The current safety standards are now replaced with ones that are health-based. Protection of vulnerable populations such as pregnant women, older adults and children is now a requirement.
It increases the authority of the Environmental Protection Agency (EPA) to test chemicals that are new or existing. It also provides aggressive deadlines. These deadlines are judicially enforceable and involve decisions made by the EPA for compliance and restrictions. It also decreases or eliminates animal testing where viable scientific alternatives exist and more.
State Regulations
The new law permits states a year and a half window to regulate the chemicals in their state without federal interference. At the end of this period, the EPA will be permitted to take action if a state has not.
Should the EPA fail to regulate the hazardous chemicals in a state within 3 ½ years, the state in question will be able to move on their own to regulate the hazardous chemical. The EPA is now able to review toxic chemicals in all states that are known to be present in the environment. These are chemicals that accumulate within the food chain.
Inventory
The news TSCA law provides the EPA with the authority to take a number of different measures associated with assessing chemical substances and mixtures. It specifically directs the EPA to maintain the TSCA inventory. This is a list of more than 69,000 existing chemicals that are used as part of commerce.
If a chemical is not on this list, it is categorized as a new chemical. This means it must go through the entire review process. Once this is done, the chemical can be added to the inventory and listed as an existing chemical.
Initial Review
There are over 89 chemicals the EPA is considering for its initial review. They include many common substances. One is bisphenol-A, which is used in the lining of plastic cans. There are also a number of flame retardants scheduled for review as well as styrene, which is used to make insulation and different types of foam cups.
Other chemicals the EPA wants to review as quickly as possible include asbestos and arsenic. The first ten chemicals will be subject to the review process within half a year after the law’s passage. After three years, 20 chemicals must be in the review process. After these reviews, the EPA will issue new regulations if it determines they are necessary.
Confidentiality Claims
The TSCA creates new requirements that a company must substantiate their claims of confidentiality pertaining to a chemical. The EPA will now be able to review all claims of confidentiality for the identification of chemicals as well as any subsets of the chemicals. It will now make a determination as to the validity of such confidentiality claims. The EPA will also review all claims of confidentiality from the past to determine if they should remain applicable.
Funding
The EPA is now permitted to collect over $24 million each year from chemical processors and manufacturers for user fees. These fees are designed to defray the costs associated with new chemical review as well as TSCA implementation of new regulations for existing chemicals.
Mark Sadaka from Sadaka Associates, the leading Hazardous Chemical Attorney, has a national practice and works with clients from New York to Alaska.