Reviving TSCA: Safe Chemicals Act Revision 2011

April 25, 2011

April 25, 2011

In April of 2010, the New York Times / Greenwire reported:United States Chemical Law: Reviving TSCA

"U.S. EPA would be given broad new authorities to target chemicals of concern and to regulate new and existing chemicals under legislation introduced today by Sen. Frank Lautenberg (D-N.J.). The bill, called the Safe Chemicals Act, would for the first time reform the 1976 Toxic Substances Control Act, or TSCA, to require manufacturers to provide information about chemicals in consumer products instead of presuming substances are safe until proven dangerous."

In April of 2011, Senator Lautenberg introduced the Safe Chemicals Act of 2011 (SCA 2011), a revised version of the 2010 legislation mentioned above by the New York Times.  (Senator Lautenberg's creditials include serving as Chairman of the Senate Environment and Public Works Committee’s Subcommittee on Superfund, Toxics, and Environmental Health.)

The esteemed Environmental Law firm in Washington, DC law, Beveridge and Diamond, aptly commented on the upshot of SCA 2011 by pointing out, "With the Republican majority in the House of Representatives unlikely to consider TSCA legislation this Congress, passage of SCA 2011 is unlikely.  Nevertheless, SCA 2011 will probably stimulate efforts by stakeholders to educate Congress and each other on a variety of approaches to overhauling TSCA that can address the deficiencies in the current statute while obtaining sufficient support to be enacted." 

Among Beveridge and Diamond's current attorneys and alumni are the first Administrator of the U.S. Environmental Protection Agency, the first Commissioner of the New York State Department of Environmental Conservation, two former EPA General Counsels, several other former federal and state agency officials, and numerous U.S. Department of Justice attorneys with experience in all types of litigation and contested proceedings.  I say that by way of giving the previous quote the weight it deserves.

SCA 2011 E-Z: articles, mixtures and nanos - oh my!

In common language, SCA 2011 differs from SCA 2010 in three key ways.

In terms of articles, the new revision would not specifically amend the definition of chemical substance to include chemicals in articles.  Articles typically means "finished goods," like a table, chair, electronic device or other saleable manufactured item for the market.  Under SCA 2011, chemical substances imported as part of an article would be subject to the same requirements as if they had been imported in bulk, with some exceptions. 

Mixtures are again a hot topic:  current TSCA allows testing and reporting rules and control actions to be issued for mixtures, although EPA rarely implements related procedures.  SCA 2011 unloads many of last year's mixture requirements so that it more closely resembles the current TSCA status quo.  SCA 2011 would let EPA take actions relating to mixtures in the same manner as actions relating to chemical substances -- in the event that EPA determined that doing so would be reasonable and efficient. 

In the realm of nanomaterials, SCA 2011 is similar to SCA 2010 in that it lets EPA determine whether nanoscale versions of existing macroscale chemicals are new chemicals.

Determining chemical safety under SCA 2011

The SCA 2011 aims to endow EPA with sufficient information to judge a chemical’s safety.  It requires manufacturers to develop and submit a minimum data set for each chemical they produce, while also preventing duplicative or unnecessary testing and encouraging the use of rapid, low-cost, non-animal tests that provide high quality data.  Again, the onus of chemical evaluation and disclosure is intended to fall on chemical manufacturers, not manufacturers in general. 

In summary, SCA 2011 aims to:

  1. Prioritize chemicals based on risk -- highest risk gets highest priority treatment
  2. Take fast action to address highest risk chemicals
  3. Ensure safety threshold is met for all chemicals on the market, with the burden of proof falling on chemical manufacturers to prove the safety of their chemicals
  4. Create open and public access to reliable chemical information
  5. Promote innovation and development of green chemistry

The Safe Chemicals Act of 2011 would, if it could, address each of the core failings of TSCA.  Overall it aims to modernize TSCA to require chemical companies to demonstrate the safety of industrial chemicals, and then to the EPA to evaluate safety based on the best available science. 

The American Chemistry Council or ACC and its members have announced they support efforts by the U.S. Congress to modernize chemical management.  A modern system, says the ACC, should place protecting the public health as its highest priority, and should include strict government oversight.