On April 14, Sen. Frank Lautenberg, D-N.J., along with Sens. Barbara Boxer, D-Calif., Amy Klobuchar, D-Minn., Charles Schumer, D-N.Y., and others, introduced the Safe Chemicals Act of 2011 which would overhaul the 35-year-old Toxic Substances Control Act (TSCA).

Background

TSCA was enacted by Congress in October 1976 and became effective January 1, 1977. TSCA mandated the U.S. EPA (EPA) to protect the public from “unreasonable risk of injury to health or the environment” by regulating the manufacture and sale of chemicals through reporting, record-keeping and testing requirements, and restrictions relating to chemical substances and/or mixtures. TSCA addresses the production, importation, use, and disposal of specific chemicals including polychlorinated biphenyls (PCBs), asbestos, radon and lead-based paint. TSCA is currently administered by EPA’s Office of Prevention, Pesticides and Toxic Substances (OPPTS).

The original version of the Lautenberg bill legislation was first introduced in 2010. Subsequently, hearings were conducted to solicit feedback from stakeholder groups from the scientific and medical community, chemical industry, public officials and non-profit organizations, resulting in several changes to the bill.

Summary of Key Provisions

Fundamentally, the bill shifts the burden of proving the safety of a chemical to chemical manufacturers and users rather than on the government. This is a basic philosophical shift from the current TSCA regulatory scheme where chemicals are presumed to be safe until proven otherwise. Under the proposed legislation, a chemical cannot be sold unless the company can demonstrate that EPA’s safety standards are met.

The updated bill establishes risk-based prioritization and tiered minimum data set requirments. It would require chemical companies to initially submit basic hazard and exposure data to quickly determine the risk and assess the need for further testing or restrictions.

In addition to establishing the chemical risk triage system referenced above, other key provisions of the bill would:

  • Allow the EPA to promulgate rules to manage and ban high-risk chemicals;
  • Restrict the use of manufacturers’ claims of Confidential Business Information (CBI) excluding claims for confidentiality of data related to health and safety. Manufacturers would be required to substantiate their claims of confidentiality when asserting the claim. Further, it would allow EPA to negotiate with other governments (local, state, and foreign) on appropriate sharing of CBI with the necessary protections, when deemed necessary to protect public health and safety.
  • Establish a public database to house the chemical information submitted to the EPA and the decisions made by the EPA about chemicals.
  • Require the EPA to establish a program to develop incentives for safer alternatives by allowing new, “green” chemicals into the market using an expedited safety review process.

Conclusion

In 2009, EPA Administrator Lisa Jackson announced that TSCA reform was a key priority for the administration. The current legislative proposal mirrors the administration’s key goals for TSCA reform, and there appears to be strong bipartisan support for the bill. Accordingly, action is expected in this Congress. The bill has been referred to the U.S. Senate Committee on Environment & Public Works.