Has TSCA reform finally arrived?

Although regulation of chemicals used in everyday products—along with development of a chemical safety system—goes back to when the federal the Toxic Substances Control Act (TSCA) and Alternatives Assessments (AAs) was established in 1976, the act’s framework has become woefully outdated.

Faced with increasing consumer demand for greater transparency and safer chemicals, along with failed efforts to overhaul TSCA, numerous states have moved forward with their own chemical management rules and regulations. While these fragmented, uneven initiatives represent efforts towards greater knowledge of chemical risks and safety, they are far from coordinated, and present increasing regulatory tracking and compliance, supply chain management and product manufacturing concerns for industry.

After several years of false starts, however, the U.S. Congress at last appears poised to modernize this antiquated law.

On June 23, 2015, the House of Representatives passed a TSCA reform bill by a margin of 398-1, and a vote is expected on the Senate’s version of reform in July. The Senate may also take up the House bill for consideration. While the two bills are not identical and some issues remain to be ironed out among stakeholders, observers in Washington are cautiously optimistic that some agreement will be reached in the current Congress. Should TSCA reform become law in the near future, it is likely to include at least some of the following changes:

  • Strengthened ability for United States Environmental Protection Agency to order chemicals testing (both new and pre-existing)
  • Clarifications on confidential business information that will allow decision-makers and emergency responders to better assess risks
  • Stronger funding streams for enforcement

Preemption of state regulations is also likely to be included in TSCA reform, although the precise details are highly contentious and will likely not be clear until a final version of the bill emerges.

According to the U.S. EPA’s Safer Choice program (known until recently as Design for the Environment), the design of chemical products and processes that decrease or eliminate hazardous substance use, generation and disposal across the lifecycle of a chemical is the essence of effective chemicals management, or “green chemistry.” Understanding the differing state approaches to chemicals management regulation and ensuring that reasonable scientific and risk-based approaches are developed and pragmatically applied is critical to the economic health of industry.

While there are differences among the various state regulations, several similarities have emerged. These include:

  • Chemicals in children’s products: Examples include Maine’s “Act to Protect Children’s Health and the Environment from Toxic Chemicals in Toys and Children’s Products, 2008” (MRS Title 38 Chapter 16D) and Washington’s “Children’s Safe Product Act, 2008” (CSPA – Chapter 70.240 RCW). Given the particular developmental sensitivities of infants and children (including in utero/fetal exposure) and the generally higher health risks associated with early life-stage exposures, this is not unexpected, and can strengthen political support for these laws.
  • Lists of chemicals of concern: State regulations provide criteria for including chemicals on lists of concern. In many cases, there are several categories of lists based on usage, potential for exposure, and degree of toxicological carcinogenic hazard. For example, Maine has adopted a list of approximately 1,700 Chemicals of High Concern, based on chemicals that were previously identified as known carcinogens, reproductive toxicants, endocrine disruptors, or persistent bioaccumulative and toxic (PBT) constituents. Maine also has a short list of Priority Chemicals, which is drawn from the Chemicals of High Concern and must meet one or more exposure-based criteria, detailed in state regulations. Depending on the level of listing for a chemical, there are various reporting, analysis and use prohibition rules that must be followed by manufacturers and distributors.
  • Alternatives Assessments (AAs): These are used to characterize hazards posed by chemicals based on a wide range of environmental and human health effects. They can provide a comparative analysis of chemicals over a variety of health, economic, and implementation end points that allow the user to generate the information needed to select safer chemicals for use in various products. Conducting an AA requires expertise and knowledge of the chemicals and industrial processes involved, as well as the experience to conduct effective research and identify and critically review data. States like Maine require an AA from manufacturers or distributors of products containing chemicals listed as Priority Chemicals. In other states, most notably California, AAs are also becoming either mandatory, or a voluntary part of the chemicals management process.

In short, while the regulatory landscape facing users and manufacturers of chemicals is currently unsettled, a possible turning point is emerging. With the prospect of federal level reforms, namely reworking TSCA, variable state regulations may well play less of a role in that landscape. In the meantime, however, existing state laws are almost certain to stay in place, even with federal reform, and need to be considered.

 To learn more about what TSCA reform could  mean for your company, sign up today to download NAEM’s free webinar on the Five Questions You Need to Answer Today, featuring experts from AlterEcho

About Patrick Derocher

Patrick Derocher is a regulatory analyst at AlterEcho, where he provides research and analysis on TSCA, AB 1879, and other state and federal statutes. Prior to assuming this role, he worked on these issues in both the private and public sectors.

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