TSCA Reform: Legislative Action Begins

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Courtesy of Bergeson & Campbell, P.C.

On April 15, 2010, Senator Frank R. Lautenberg (D-NJ) released the text of the Safe Chemicals Act of 2010, S. 3209 (SCA),1 which is intended to address the “core failings” of the Toxic Substances Control Act (TSCA).

On the same day, Representatives Bobby Rush (D-IL), Chairman of the House Subcommittee on Commerce, Trade, and Consumer Protection, and Henry Waxman (D-CA), Chairman of the Energy and Commerce Committee, released a discussion draft of their legislation, the Toxic Chemicals Safety Act of 2010 (referred to here as the Discussion Draft).2 A discussion draft is a document that reflects ideas for new legislation. It is considered very much a work in progress intended to encourage discussion.

The Senate bill and House Discussion Draft suggest the type of top-to-bottom restructuring of domestic chemical management that is likely to become part of a new and “modernized” TSCA. As the discussion below reveals, there is nothing modest about the changes that are being proposed. The sweeping reforms that could become part of the legislative mix are nothing short of breathtaking.

This “Washington Watch” column begins with some background on TSCA and then previews the reforms that Congress will be considering. It notes the implications of TSCA reform for regulators and suggests how current regulatory efforts may affect the outlook for legislation.

Background: TSCA and Its Perceived Shortcomings

TSCA has been the subject of robust and often partisan controversy for years. Many in the chemical production and processing community believe the statute has worked fairly well, particularly when addressing new chemicals. But in the public health and environmental activist communities, many believe TSCA has worked poorly and needs significant reform. Virtually all stakeholders agree that the public’s confidence in the ability of the United States Environmental Protection Agency (US EPA) to protect human health and the environment under TSCA has eroded.

There are several key concerns with TSCA that are noted with great regularity. Specifically, detractors argue the following:

  • Under the current TSCA statute, the burden of proof is misplaced. Chemical producers should have the burden of demonstrating that their chemicals are safe. Instead, the government is required to prove that a particular chemical is unsafe before it can take meaningful action to control the chemical’s sale and use.
  • The legal standard for demonstrating that a chemical is likely to cause harm to human health or the environment is too burdensome and the evidentiary standard is too rigorous. These hurdles prevent US EPA from banning chemicals that it believes pose unreasonable risk.
  • Chemical manufacturers and processors assert confidential business information (CBI) claims too frequently. As a result, too much information on chemicals is shielded from public disclosure.

As discussed below, the Senate bill and the House Discussion Draft offer dramatic changes to TSCA to address these and other concerns.

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