The Toxic Substances Control Act (“TSCA”) became law in 1976 with the objective of regulating chemicals in commerce that posed an “unreasonable risk of injury to human health or the environment.” While originated with good intent, TSCA had become a stale law that lacked clarity for industry and regulators alike. Now, after years of legislative efforts, and with the support of many (including industry, environmentalists, public health officials, and bipartisan efforts in Congress), TSCA is soon to receive a major update through the Frank R. Lautenberg Chemical Safety for the 21st Century Act.

The reformed TSCA, signed into law yesterday by President Obama, will implement changes that affect every industry importing, manufacturing, or processing an industrial chemical substance. The law aims to strengthen chemical regulation by clarifying EPA’s role in regulating new chemicals and mandating the EPA evaluate all chemicals currently in commerce. These changes will not be instant; but, industry should expect a need to implement major changes in chemical management within three to five years.

Some of the most significant changes to TSCA include:

  • EPA will be mandated to review all chemicals currently existing in commerce, beginning with those chemicals it deems high priority.
  • Industry will now need the approval of EPA to move forward with the commercialization of a new chemical.
  • EPA will regulate chemical substances based solely on the risk that substance provides to human health and the environment. TSCA’s previous “balancing test” between the risk of a chemical and the chemical’s economic impact has been eliminated.
  • EPA will no longer be required to impose the “least restrictive” requirements when regulating chemicals in commerce. TSCA’s previous language requiring chemical regulation at the least burdensome alternative to industry has been eliminated.
  • EPA will have the power to preempt state laws that may contradict its risk finding in certain circumstances. For instance, states will be barred from banning or restricting the use of chemicals for which EPA has issued a safety determination.
  • EPA will have the authority to order chemical testing from industry to review pre-manufacture notices or “significant new use” notices.
  • Confidential Business Information claims will be more difficult to make and will expire in 10 years.