The outdated Toxic Substances Control Act (TSCA) has just received the most significant update in decades. On Wednesday, June 22, President Obama signed into law sweeping reforms, which had bi-partisan support in both houses. Last month, the U.S. House of Representatives voted overwhelmingly to approve a revised version of the Toxic Substances Control Act (TSCA) reform bill, H.R. 2576, originally approved by the House last year. The Senate passed the bill on June 7. The newly signed bill was a compromise following House and Senate negotiations to reconcile differences between last year’s House bill and a competing Senate bill which, in turn, followed years of wrangling of proposed reforms. The landmark TSCA update brings sweeping changes to the federal regulation of chemical safety.
In a departure from the prior TSCA, the overhaul provides for federal preemption of chemical safety regulation by states in some circumstances – a point that was hotly debated during the negotiations. The new legislation establishes deadlines for EPA’s review of “high priority” chemicals to determine whether the chemical presents an unreasonable risk. During this evaluation period, states are preempted from regulating the subject chemical. If EPA decides, after its evaluation, that a chemical does not present an unreasonable risk and therefore requires no regulatory action, states are preempted from enacting laws that contradict that finding within the applicable scope of the analysis. (Some state laws, including California’s Prop 65, are grandfathered and will not be subject to this preemption provision.)
While federal preemption provides some increased measure of certainty by curbing the increasing development of a patchwork of state rules, companies should be aware of new limitations imposed by the bill, particularly on confidentiality claims and new methods of analysis when EPA performs its risk evaluations. The law allows for more aggressive information requests from companies, and would limit what could be claimed as confidential when companies submit information on a specific chemical being evaluated by the EPA, and some of the information claimed as confidential would still be made available to states and health and environmental professionals. When evaluating chemicals, EPA will no longer be able to use a cost-benefit analysis in assessing safety. Instead, it will evaluate safety based solely on scientific information, and will issue guidelines for use following an initial assessment of the chemical.
Alston & Bird will be closely monitoring the implementation of these new reforms. If you have questions about the new TSCA’s implications for your business, please contact Maureen Gorsen, Maya Grasse, or anyone in our Environmental, Land Use and Natural Resources practice group.