On May 22, 2013, Senators Frank Lautenberg (D-NJ) and David Vitter (R-LA) introduced the “Chemical Safety Improvement Act” (CSIA). Co-sponsored by a bipartisan group of 14 additional Senators, the CSIA would “modernize” the existing Toxic Substances Control Act (TSCA) and bring about a major overhaul of this country’s chemical management regulatory regime.
Among its more significant provisions, the CSIA:
- declares that chemicals should be “safe for the intended use of the chemicals;”
- establishes a safety standard for chemicals, requiring that “no unreasonable risk of harm to human health or the environment will result from exposure to a chemical substance;”
- requires USEPA to conduct safety assessments of chemicals and make a determination about whether the chemicals meet the safety standard;
- authorizes USEPA to take action against chemicals that do not meet the safety standard;
- gives USEPA authority to require testing of chemicals by order or under a consent agreement, in addition to a formal rulemaking (as currently required under TSCA); and
- lessens the requirement for USEPA to require testing of chemical and makes it easier for USEPA to obtain information on chemicals from chemical manufacturers and processors.
As with the current TSCA, the CSIA requires companies to submit a premanufacture notice (PMN) to USEPA before they can produce a chemical substance in the United States or import it into the country. Upon receipt of the PMN, the CSIA requires USEPA to make an “initial determination” of whether the substance is likely or unlikely to meet the safety standard or whether additional information is needed on the chemical. If USEPA determines that the chemical is likely to meet the safety standard, USEPA will allow the 90-day PMN review period to pass without further action on the chemical. If, however, USEPA determines that the chemical is unlikely to meet the safety standard, the CSIA authorizes USEPA to take a variety of different actions by order or consent agreement to limit or even prohibit the manufacture, importation, processing or distribution of the chemical. Similar requirements would apply for USEPA review of significant new uses of existing chemicals.
With regard to chemicals already in commerce, the CSIA requires USEPA to establish a process for prioritizing and screening these “existing chemicals.” USEPA would establish a list of “high priority” existing chemicals (based on their hazard and exposure potential) for which it would conduct safety assessments and make a determination about whether the chemicals meet the safety standard. USEPA also would establish a list of “low priority” chemicals that, based on available information, USEPA believes are likely to meet the safety standard. USEPA would be prohibited from conducting safety assessments of low priority chemicals, but chemicals could be moved from the low priority list to the high priority list (and vice versa) based on new information available to USEPA.
If USEPA determines, based on the safety assessment, that a high priority existing chemical does not meet the safety standard, it may take a range of actions, up to and including banning or phasing out the chemical. USEPA’s determination that a chemical does not meet the safety standard is judicially reviewable, however. Moreover, any limitations imposed by USEPA based on such a determination must be done by formal rulemaking.
The CSIA makes a number of other changes to the current TSCA provisions, including modifying the protection of and requirements for confidential business information claims. The CSIA also provides for preemption of some state regulation of chemicals under certain conditions.
The CSIA represents a major step forward in the congressional effort to revise TSCA, and its introduction substantially improves the prospect for passage of some version of TSCA reform. Companies that manufacture, import, process or distribute chemicals should follow the upcoming congressional debate closely.