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Bipartisan TSCA Reform Act Signed by President Obama

CorporateEnvironmentalLawyer2015By Allison A. Torrence

On June 22, 2016, President Obama signed the Frank R. Lautenberg Chemical Safety for the 21st Century Act (a/k/a the TSCA Reform Act) into law. The TSCA Reform Act received bipartisan support in both the House and Senate, passing both bodies by wide margins. The TSCA Reform Act is a major overhaul of the 40-year-old chemical law, which had fallen short of its goal to protect people and the environment from dangerous chemicals.

In an article posted on EPA’s blog, Administrator Gina McCarthy praised the TSCA Reform Act, stating:

The updated law gives EPA the authorities we need to protect American families from the health effects of dangerous chemicals. I welcome this bipartisan bill as a major step forward to protect Americans’ health. And at EPA, we’re excited to get to work putting it into action.

Key provisions of the TSCA Reform Act include: 

Risk-Based Evaluation of Existing Chemicals

  • EPA must establish a risk-based process to determine which existing chemicals it will prioritize for assessment, identifying them as either “high” or low” priority substances
    • High priority designation triggers a requirement and deadline for EPA to complete a risk evaluation on that chemical to determine its safety
    • Low priority designation does not require further action, although the chemical can move to high-priority based on new information
  • Chemicals are evaluated against a new risk-based safety standard to determine whether a chemical use poses an “unreasonable risk”
    • Risk evaluation excludes consideration of costs or non-risk factors and must consider risks to susceptible and highly exposed populations
  • When unreasonable risks are identified, EPA must take final risk management action (including, potentially, bans and phaseouts) within two years, or four years if extension needed
  • New fast-track process to address certain Persistent, Bioaccumulative, and Toxic (PBT) Chemicals

Pre-Market Review of New Chemicals

  • New requirement that EPA must make an affirmative finding on the safety of a new chemical or significant new use of an existing chemical before it is allowed into the marketplace

Impact on State Laws

  • States can continue to act on any chemical, or particular uses or risks from a chemical, that EPA has not yet addressed, and existing state requirements (prior to April 22, 2016) are grandfathered
  • State action on a chemical is preempted when EPA finds (through a risk evaluation) that the chemical is safe, or EPA takes final action to address the chemical’s risks
  • State action on a chemical is temporarily “paused” when EPA’s risk evaluation on the chemical is underway, but lifted when EPA completes the risk evaluation, or misses the deadline to complete the risk evaluation
  • States can apply for waivers from both general and “pause” preemption

Mercury-Specific Requirements

  • Export of certain mercury compounds is prohibited
  • EPA must create an inventory of supply, use, and trade of mercury and mercury compounds

More information about the TSCA Reform Act is available at EPA’s website.

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