The Future of the Toxic Substances Control Act: A Look at How Reform is Measuring Up

DSC_0975By Brendan Hennessey, GIELR Staff

On November 4, the European Chemicals Agency published a draft update to the Community Rolling Action Plan for years 2014-2016, introducing chemicals to be evaluated by EU member states under the Registration, Evaluation, Authorisation and Restriction of Chemicals (“REACH”) law.  This draft proposal could have important consequences for those seeking to sell these chemicals and products containing them into the EU market.  Although the final list of substances to be evaluated will not be adopted until March 2014, determinations on the safety of these chemicals could mean that a company will be compelled to generate and disclose additional information beyond that of its initial registration.  Under REACH, chemicals evaluated and designated as “substances of very high concern” either need authorization for specific usage by the European Commission or may be phased out entirely.

The release of this draft proposal should serve as a reflection point for U.S. legislators, regulators, chemical manufacturers, consumer advocates, and environmental organizations as changes to the much older U.S. statute governing chemical regulation, the Toxic Substances Control Act (“TSCA”), are considered.  While REACH puts the burden on companies to produce information on the human health or environmental impacts of a chemical, TSCA does not require companies to develop any such information.  Rather, the burden is on the Environmental Protection Agency (“EPA”) to show that a chemical poses an “unreasonable risk” before regulating it.  Further, TSCA requires that any action by EPA be the least burdensome regulatory action, a requirement that ultimately sunk EPA’s efforts to regulate asbestos.

Failures such as regulating asbestos and the stark contrast to the EU’s proactive requirements have created significant frustration for many. Grassroots advocates have led “stroller brigades” to Capitol Hill to call for reform and environmental organizations have developed reports highlighting failures in the law.  Issues of particular contention raised in reform discussions are the proposed requirements that companies develop and disclose information on their chemicals.  Although, the American Chemistry Council, which represents chemical manufacturers, has responded that there is more agreement on how these requirements should work than some have been willing to recognize.

In the absence of TSCA reform there has been a struggle to find alternative routes to better chemicals regulation.  The Government Accountability Office has come up with a particularly novel approach to improving U.S. chemical regulation—ask the EU for the information disclosed to them under REACH.  However, the more reasonable response has been the enactment of state laws, which put significant new requirements in place.  For example, on October 1, 2013, regulations went into effect under California’s Green Chemistry Law, which is designed to identify toxic chemicals in consumer products and encourage companies to find safer alternatives.

Despite the willingness of states to regulate toxic chemicals, or perhaps because of it, reform at the federal level has gained momentum.  In July, the late Senator Lautenberg and Senator Vitter introduced the Chemical Safety Improvement Act (“CSIA”), which significantly updates TSCA.  Yet, some reform advocates are concerned that CSIA is not strict enough and will weaken advances made by states in the regulation of toxic chemicals.  For instance, CSIA does not require the development or disclosure of data for either new or existing chemicals.  CSIA also includes broad language that prevents states from enforcing existing or new laws regulating chemicals that have been designated “high priority” by EPA or enacting new laws regulating chemicals designated “low-priority” chemicals.  A lack of clearly defined timelines in the bill means that EPA could potentially have regulations for these chemicals under consideration without final action indefinitely, while states are meanwhile prohibited from enforcing their own laws.

While it remains unclear whether TSCA reform will be a reality anytime soon, it seems likely that in the absence of reform, the success or failure of the EU’s REACH law will serve as a measuring stick by which observers will determine just how far reform in the United States must go to ensure human health and environmental safety.  At the same time, the impact of state laws may shift the reform conversation if they are not first robbed of the ability to take effect.