September 22, 2013

TSCA and the Proposed Chemical Safety Improvement Act

From: RegBlog

Jenna Shweitzer

The majority of chemicals in use today have not been screened for safety or regulated under the Toxic Substances Control Act (TSCA), making the Act considered to be largely ineffective. The proposed Chemical Safety Improvement Act (CSIA) would revamp and modernize TSCA by requiring all existing and new chemicals to be screened for safety and then regulated if necessary.

Introduced by the late Senator Lautenberg (D-NJ) and Senator Vitter (R-LA), the CSIA appears to have considerable bipartisan support, having won praise from both industry and environmental advocates. Although the CSIA is viewed by many as an improvement over TSCA, some argue that the bill does not go far enough to protect human health and the environment.

TSCA was enacted in 1978 to provide the Environmental Protection Agency (EPA) with the authority to examine the risks a chemical poses before it enters the market and to regulate those chemicals that present an “unreasonable” risk of harm to human health or the environment. Yet TSCA empowers EPA to call for safety testing and subsequent regulation only after evidence surfaces demonstrating that a chemical may pose a risk of unreasonable harm.  As a result, EPA has only required testing for roughly 200 of the more than 84,000 chemicals currently registered in the U.S.  The agency has banned only five substances since TSCA was first enacted (PCBs, CFCs, dioxin, asbestos, and hexavalent chromium).

Under the CSIA, however, EPA would be required to publish a list of active chemicals and then conduct a prioritization screening of all active chemicals, designating each substance as a “high” or “low” priority.  High priority chemicals have the potential to be particularly hazardous or widespread, while low priority chemicals are likely to meet the CSIA “safety standard.”  During the prioritization phase, EPA cannot require manufacturers to submit relevant data, a decision some stakeholders criticize because they believe it hinders accurate prioritization.  Yet unlike TSCA, which treats the lack of data as supporting a presumption of a chemical’s safety, limited data could be a reason under the CSIA to give a chemical a high priority designation.

The CSIA would require EPA to conduct a “safety assessment” of all high-priority substances and make a “safety determination” as to whether the substance poses an unreasonable risk of harm to human health or the environment. This safety standard appears similar to the TSCA standard, but TSCA requires EPA to conduct a cost-benefit analysis in applying the standard, whereas the CSIA would require the assessment to be risk-based only. In conducting the assessment, EPA would retain the authority to require testing of a substance through rulemaking, as well as through an order or consent agreement under the CSIA. The use of orders and consent agreements will make it easier for EPA to require testing of a chemical substance, and could lead to more frequent testing.

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