New Legislation to Amend TSCA
Part of my job is to ensure that the company I work for is in compliance with all state and federal environmental regulations. As such, I receive updates to and letters of clarification on existing laws. Today I received an email that states that Senator David Vitter (R-LA) has introduced a bill co-sponsored by Senator Frank Lautenberg (D-NY) to reauthorize and amend the Toxic Substances Control Act of 1976 (TSCA). The bill is called the Chemical Safety Improvement Act (CSIA).
The newly proposed legislation basically boils down to the following points:
1. The EPA must make science-based decisions regarding regulation of chemical substances on the weight of the “best available science.”
2. The EPA’s safety evaluation of chemical substances needs to be streamlined and functional.
3. The EPA’s determinations based on these safety evaluations will trump all determinations or actions by state or local governments.
4. Trade secrets, intellectual property and other confidential business information will be protected with upfront substantiation.
5. The EPA’s decision-making process must be completely transparent.
What does this all mean? Let me give you some background:
Toxic Substances Control Act of 1976
TSCA provided the EPA with the authority to require companies to report chemical substances produced or incorporated at their facilities, keep records of chemical inventory paying special attention to substances considered to be extremely hazardous, conduct testing where required, and impose restrictions upon the use, production or distribution on chemical substances and mixtures.
With the passing of TSCA in 1976, it charged the EPA with the responsibility to protect the public from “unreasonable risk of injury to health or the environment” and gave the agency the authority to regulate the production and sale of chemical substances. Certain substances are exempted from coverage under TSCA, including food, drugs, pesticides and cosmetics.
At the time this original legislation took effect, most existing chemicals were grandfathered, and despite the “Toxic Substances” part of its name, the act does not separate chemical substances into categories of “toxic” and “non-toxic.” In general, the act requires that chemical manufacturers or other companies provide the EPA with notification before making or importing any chemical substance that is not already listed. There are a few huge exceptions to this requirement:
- Research and development
- Substances that are supposed to be regulated under other regulations, like the Federal Food, Drug and Cosmetic Act and the Federal Insecticide, Fungicide, and Rodenticide Act
After receiving these notifications, the EPA reviews the information provided by the manufacturer or user and decides what kinds of restrictions, if any, to put on the use of this new chemical substance or mixture.
Because the chemicals existing at the time this act took effect were grandfathered, there are some 62,000 listed chemical substances that have not been subject to any testing or evaluation by the EPA, because they had not been deemed an “unreasonable risk.”
Despite claims from certain political camps, the EPA has only managed to severely restrict the use of five chemical substances since the agency’s creation in 1970:
- Polychlorinated biphenyl products (PCBs)
- Asbestos (the ban on which was overturned in 1991)
- Hexavalent chromium
Major criticisms of TSCA, particularly by environmental groups and even officials within the agency itself, is that the act is relatively toothless. An internal report even characterized the EPA’s processing of new TSCA cases as “predisposed to protect industry information rather than to provide public access to health and safety studies,” and identified trade secrets as an obstacle to effective testing and evaluation.
I won’t really have a good analysis of the new legislation until I read them both side-by-side, but so far CSIA looks like a good improvement, although it’s always a good policy to read newly-proposed legislation with an eye to new and controversial technologies – in particular the practice of hydraulic fracturing, more commonly known as fracking (EPA study here), and the existing and proposed pipelines for the oil and gas industry. There was a spill of crude in Arkansas in March of this year – which came as a huge surprise to the residents, most of whom weren’t even aware they were living close to a pipeline. And the same pipeline ruptured again at the beginning of this month, this time in Missouri. And of course, one should also keep in mind recent industrial disasters, to understand how compliance with these proposed rules might have mitigated the event.
Anyway, let me know if any of you are interested to read further analysis regarding this new legislation.