Regulatory Review / Columns

Regulatory Review: TSCA Reform and EPA Actions

The recent introduction of a bipartisan bill will likely pave the way for future TSCA reform.

When the Toxic Substances Control Act (TSCA) was enacted in 1976, most people interested in chemicals regulation lauded it as the greatest and most advanced piece of chemical legislation of their time. For 37 years, TSCA has been the primary law for regulating chemicals in the U.S.

However, much like if TSCA were an automobile, the 1976 model is in need of an overhaul. New models like REACh and green chemistry legislation in various states and countries offer new features and different ways to look at chemicals and concepts that did not exist in 1976, such as alternatives assessment.

Most people agree with the automobile analogy in describing TSCA, regardless of whether they work in the chemical industry, law, academia, non-profits or even the government. But what is being done to rebuild and update TSCA? Will those efforts get anywhere, and for the interim, what will chemicals regulation look like?

A New Bill

On May 22, a rare event occurred in the Senate: a bipartisan bill. That bill just happens to be about chemical regulation reform. The now late Sen. Lautenberg (D-NJ), a long-time champion of chemical reform who himself proposed TSCA reform bills in the last three Congresses to no avail, joined with Sen. Vitter (R-LA) and 14 other senators from both parties to develop a draft bill being referred to as the Chemical Safety Improvement Act. This bill has the intent to “reauthorize and modernize the Toxic Substances Control Act.” 

While this is a first draft and getting too specific may not be prudent, general themes can be pointed out. The Act intends:

• To ensure that exposure pathways and likelihood are considered in regulation of chemicals; application/use-based regulation and not blanket regulation

• To ensure confidential business information is protected as best as possible while allowing for regulatory investigation and transparency in process

• To use alternatives assessment in determining a regulatory response to a chemical coupled with economic and social analyses

• To create a prioritization scheme such that regulators and industry have a list to work from of what is considered a high priority and lower priority

• To centralize chemical regulation, with the EPA taking the lead over the states while at the same time engaging the states in the process of setting priorities and working through the process

• For the process of regulating both new and existing chemicals to be data driven; where there is no existing data, data should be gathered to ensure regulatory decisions are sustainable

Reform Expectations

Even though this bill is bipartisan and seems at first glance to fulfill the most glaring needs of today’s domestic chemical regulation, many on the Hill indicate that they do not expect any significant chemicals regulation changes to come about in this Congress. Today’s political landscape is littered with higher priority or higher profile issues such as scandals, international turmoil, ongoing budget and taxation debates, and natural disasters.

Even if the Senate does pass a bill based on the work of Lautenberg and Vitter, the House would have to review it as well, which many see as unlikely. In spite of this, it is expected that work done in this Congress may show the way of TSCA reform in the next Congress. Work done on the bill will serve as the starting point for TSCA reform in 2015. Many do see this bill as, at bare minimum, a very good start.

Current Action

Given that TSCA reform seems unlikely for the next couple of years, what kind of chemical and toxics regulation is being faced? Two avenues should be examined.

Current EPA Plans

The management and action plans currently outlined by the EPA will continue to be executed. Beyond the chemicals used in the adhesives and sealants industry, this will include ongoing work on isocyanates, initiating work on D4 siloxanes, possibly finishing the work with medium- and short-chained chlorinated paraffins and a continuation of the alternatives assessment process within the action plan for phthalates.

Current Programs and State Regulatory Measures

The implementation by individual states and the continued de facto regulation created by marketplace drivers such as LEED and the Living Building Challenge (for the construction market) will continue. In light of delays in TSCA reform, and the need identified by stakeholders such as non-government organizations and legislatures to fill the void, these programs and states will be leaders.

While California’s law is gaining the most attention and will have influence, other states such as Washington and Maine have shown leadership in using alternatives assessment concepts focused on the continual improvement of product safety. While speculative, it is likely all three (not to mention other states) will impact TSCA in 2015 or beyond. As similar concepts gain ground in marketplace drivers, those too will prove influential.

Ongoing Process

 To close, TSCA is not likely to be reformed this year or next. That process is underway, however, with the efforts of Lautenberg and Vitter. In the interim, the EPA will keep using the current regulation as effectively as possible while states look to fill in where TSCA, despite being the best automobile of 1976, has shown its rusty spots.   

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