The past four decades have seen a steady erosion of public confidence in the federal government’s ability to identify and control potential risks from exposure to industrial chemicals, especially when they’re in consumer products. That’s why many of us who work extensively in product law, regulation, and policy celebrated President Obama’s signature today on H.R. 2576, the Frank R. Lautenberg Chemical Safety for the 21st Century Act. The bill extensively amends the Toxic Substances Control Act (TSCA), the federal chemical management law. These amendments go a long and comforting way in fixing what was wrong with TSCA, and empower the U.S. Environmental Protection Agency (EPA) to identify and manage chemical risks more efficiently and effectively.
Here are four reasons why the American public has reason to celebrate today, the first day in a long time that we have a comprehensive and vastly improved domestic chemical management law.
Reformed TSCA strikes the requisite balance between Congressional specificity and Agency discretion. TSCA lacked a clearly articulated mandate; EPA had struggled for decades with implementation since the Act’s passage in 1976. The result has been diminished public confidence in the government’s ability to assure chemical safety. The extraordinary number of state and local chemical laws and related retailer initiatives that have emerged in recent years reflect this undeniable truth.
Reformed TSCA addresses the law’s most celebrated deficits. The federal government’s inability quickly and decisively to control risks from chemicals grandfathered in under TSCA is, to many, TSCA’s greatest failing. The new law eliminates the impossibly problematic “least burdensome requirement” that EPA was required to prove in regulating risk from existing chemicals. EPA’s inability to regulate asbestos under TSCA Section 6 is proof positive of this standard’s fundamental flaw. Eliminating this ill-conceived requirement and imposing aggressive timelines for completion of measures for ensuring chemical prioritization, risk evaluations, and risk management actions are exactly the measures needed to restore public confidence in EPA’s ability to manage chemical risks. Reformed TSCA provides all of these measures.
Reformed TSCA gives EPA authority to do its job: manage chemical risks. The new law contains mandates to initiate rulemakings by specified dates for all chemicals determined to meet the risk evaluation standard. In regulating a chemical under the new law, EPA is required to consider and publish a statement of essential considerations, including the effects and magnitude of chemical exposure, the benefits of the chemical, the reasonably ascertainable economic consequences of the rule, the costs and benefits of the regulatory action, and one or more primary alternative regulatory actions EPA has considered. In framing the safety standard in this way, the new law properly allows EPA to consider costs and benefits in considering its regulatory options to address chemical risks identified in the risk evaluation process.
Reformed TSCA ensures greater transparency and public engagement in the chemical evaluation process. In requiring rulemakings that invite public comment and engagement, the new law provides all stakeholders an opportunity to review, consider, and comment on EPA’s chemical evaluations. Similarly, the new law requires EPA to review and approve or deny all past Confidential Business Information (CBI) claims filed to mask the identities of chemicals in commerce as listed on the TSCA Inventory. It also requires that most CBI claims be substantiated when asserted and reviewed by EPA; it calls for them to expire after 10 years unless re-substantiated. These measures go a long way in restoring the public’s trust in a system that must both recognize the need to foster innovation by protecting legitimate CBI and acknowledge the public’s right-to-know.
The Frank R. Lautenberg Chemical Safety for the 21st Century Act is well-crafted legislation and its enactment today makes TSCA a better, more protective law. These reforms have been years in the making, and the wait, while long and challenging, has paid off. We owe a debt of gratitude to all those who worked tirelessly to draft the legislation and champion its enactment.
Lynn L. Bergeson is Managing Partner of Bergeson & Campbell, P.C.