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How TSCA Reform Bills Would Impact Existing Chemicals in the Marketplace

By Kimberly Dean

Monday, June 8, 2015

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The House Energy and Commerce Committee voted 41-0 to pass H.R. 2576, the TSCA Modernization Act of 2015, out of committee last week. The continued bipartisan action on this legislation indicates a concerted congressional and stakeholder interest in reforming this outdated statute. Since opposition to the bill lingers, negotiations will need to continue in order to pass Toxic Substance Control Act (TSCA) reform legislation out of both chambers.

BPC’s past posts on TSCA have focused on successful bipartisan actions on legislation to reform the TSCA, the need for such reform, and why now is the time for reform. This week’s blog will provide an overview of key aspects of the Senate and House TSCA reform bills’ regulation of existing chemicals.

Both the Senate bill, the Frank R. Lautenberg Chemical Safety for the 21st Century Act, S. 697, and the House bill, the TSCA Modernization Act of 2015, H.R. 2576, would make vital reforms to the regulation of chemicals.

The Senate Lautenberg Chemical Safety bill would make important changes to the Environmental Protection Agency’s (EPA) authority and to the process of addressing existing chemicals. One of the bill’s most significant changes to EPA’s authority is it improves the criteria for restricting a chemical substance. The bill establishes a safety standard that is based on the regulatory threshold of an “unreasonable risk of injury to health or the environment,” as is used in the TSCA currently. The bill, however, would make three important adjustments to that standard. First, the regulatory threshold would be based on whether the conditions of use of a chemical would attain the safety standard. Second, in evaluating risks, it explicitly includes potentially exposed or susceptible populations in language. Third, the bill would specifically prohibit EPA from considering cost and other non-risk factors in evaluating risks.

The Senate bill would also make process-based modifications. Currently, EPA has discretion regarding which chemicals to evaluate for risks and does not need to review or evaluate chemicals. S. 697 would prioritize existing chemicals in multiple steps for evaluation of risks. First, EPA would divide the chemical inventory into categories—substances that currently exist in the marketplace and those that do not. The bill would require EPA to complete in a timely manner the designation of all active substances as high or low priority. EPA would prioritize chemicals based on a variety of factors and would conduct risk-based safety evaluations. It would need to designate at least 25 chemicals as high priority, and begin a safety assessment of them within five years of the bill’s enactment. Further, the agency would need to complete safety evaluations and determinations within three years after a chemical’s designation as high priority. EPA would also release a rule within two years after a negative safety determination, with limited extensions.

In addition, manufacturers and processors could also request EPA prioritize specific chemicals for an evaluation and EPA could decide whether to grant a limited number of those requests, subject to public notice and an opportunity for comment.

The House TSCA Modernization Act of 2015 would also make a few changes to EPA’s authority regarding existing chemicals. The bill provides explicit authority for EPA to assess the risks of the dozens of chemicals included in the TSCA Work Plan as of the date of enactment of the bill, without going through extra steps. This would leverage existing information on these chemicals.

The House bill would also maintain the existing “unreasonable risk” regulatory threshold for restricting a chemical substance. The bill, however, would add certain requirements for EPA’s risk evaluation process. These include assessing potentially exposed population risks and precluding consideration of information related to cost and other factors not directly related to health or the environment.

The bill also provides that EPA would evaluate a chemical’s risk of harm to human health or the environment before imposing a restriction or prohibition on it. Further, the bill does not place any limits on the number of manufacturer requests, though the requester must pay for them. It also does not set EPA deadlines on its findings of potential for unreasonable risk.

The Senate and House TSCA reform bills are an important step forward. About 62,000 chemicals were grandfathered in when TSCA was enacted in 1976, yet EPA has required testing on less than 300 of them. Taking action to update the regulation of chemicals could greatly enhance public health and environmental protection for Americans.

The Bipartisan Policy Center believes the current TSCA laws need to be updated. Our next post on this process will focus on the impact of current reform bills on new chemicals entering the marketplace.