Burr & Forman

07.5.2016   |   Blog Articles, Environmental Law Matters, Environmental Protection Agency, EPA, Toxic Substances Control Act

Advancing Chemical Safety – Maybe the Art of Compromise Isn’t Such a Bad Thing

President Obama signed a major reform of the Nation’s chemical safety standards on Wednesday, June 22. The legislation amended the 1976 Toxic Substances Control Act, providing the first substantive changes in the 40-year old law. (The Hill: Obama Signs Chemical Safety Overhaul).

The amendments significantly change the authorities of the Environmental Protection Agency to evaluate chemicals and provide protection to the public. The goal is to provide more extensive and functional oversight of the chemical industry, but in a way that provides certainty to chemical manufacturers. It also addresses a number of flaws in the original Act. Under those original requirements, EPA was obliged to prove that a chemical possesses a potential risk before it could demand any data or require testing by the manufacturer. In the absence of those actions, a new chemical can automatically enter the marketplace after 90 days. Over the 40-year history of the Act, EPA required testing for approximately 200 of the thousands of chemicals that have been introduced and has issued regulations to control only 5 of that number. There are several thousand different chemicals in use, and they are found in almost every item in the public marketplace.

EPA will now be required to deem a chemical to be safe before it enters that marketplace. The amended Act will allow EPA to require that companies test new products, and it makes the evaluation of those tests purely science-based. Historically, EPA has been required to weigh regulatory costs as a part of the safety review process, and it has been required to select the least burdensome regulatory method Those requirements have been eliminated. (Science Magazine)

Interestingly, the long-term effort to amend the Act finally succeeded as a result of compromise between a number of different interests. Manufacturers pressed for the legislation because several states had begun to impose their own regulatory requirements, and manufacturers saw the merit in some type of uniformity. Environmental groups such as the Environmental Defense Fund and the Environmental Working Group supported the legislation as being part of a necessary overhaul. As a result, the legislation found bipartisan support in Congress. (E & E News).

While the compromise was generally accepted, there were concerns remaining and expressed primarily by States that have already established their own regulatory programs. The legislation appears to limit the implementation of those programs by way of a process of temporary preemption, which will apply during the time that EPA is assessing a particular chemical, unless EPA misses an assessment deadline. The assessment process can take between 2½ and 3½ years. Thereafter, if a State is dissatisfied with the EPA decision or lack thereof, the State can proceed on with its own regulations. A waiver process can be initiated by a State during EPA’s assessment process, but it remains to be seen how effective this might be. (EDF /Health)

The need for TSCA reform has existed for many years, but it was apparently only achieved now by the willingness of various interests to embrace compromise. That concept, which was fundamental to the formation of the nation, and which has helped guide actions throughout most of our history, has become reviled as a sign of weakness by those who appear to insist that the solutions to problems that they offer must be accepted without change. This often misses, or intentionally ignores the legitimate interests of others and viable solutions they may put forth. The TSCA amendments notably bucked that trend. While it’s probably too much to hope that this is a signal of better things to come with respect to our current political process, one can always choose to be optimistic.

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