Chemical Safety Rules Pass Congress. What’s Next for Manufacturers?

toxic chemicals

by | Jun 9, 2016

toxic chemicalsThe US Senate late Tuesday night approved a measure to update the 40-year-old Toxic Substances Control Act, requiring new testing and regulation of thousands of chemicals used in everything from cleaning products to paint thinners and clothing.

The Senate’s passage of the new chemical safety rules, which followed the US House’s final approval late last month, was largely praised by industry and environmental groups.

“By delivering clear, modernized rules, this reform will make it easier for manufacturers to ensure the safety of our products and deliver quality goods to our customers,” said National Association of Manufacturers president and CEO Jay Timmons in a statement. “The regulations on these chemicals will be clearer and more straightforward, meaning time and resources that would have been spent trying to navigate outdated, confusing rules can now be spent on driving innovation and creating jobs.”

The American Chemistry Council called the passage of the bill “truly historic,” with ACC president and CEO Cal Dooley adding: “This legislation is significant not only because it is the first major environmental law passed since 1990, but because TSCA reform will have lasting and meaningful benefits for all American manufacturers, all American families and for our nation’s standing as the world’s leading innovator.”

Some public health and environmental advocates, however, did criticize the bill for being too lenient on chemical companies, which worked with lawmakers to draft language that they would support.

Under the outdated 1976 law, about 64,000 chemicals in the marketplace have not been tested or regulated by the EPA. The new law would require the EPA to test all existing and new chemicals to determine if they pose a threat to human health or the environment. The agency only has to examine about 20 chemicals at a time, however, and has seven years to assess each chemical.

In a win for chemical companies, the new federal rules will pre-empt stricter state-level chemical rules.

Now that the new chemical safety rules have passed both the US House and Senate, with President Obama expected to sign the bill any day, what can companies expect?

“The impact to the manufacturing sector may be enormous,” said attorney Maureen Gorsen in an email. Gorsen is a partner in Alston & Bird’s Environment, Land Use & Natural Resources group and former director of the California Department of Toxic Substances Control.

“This will be the largest authorization of new jurisdiction to the US Environmental Protection Agency since the Clean Air Act reauthorization in 1991,” Gorsen said. “Reform has been a long time coming, but it remains to be seen how new safety standards and regulations will be enforced and what changes manufacturers will need to make.”

Judah Prero, an attorney at Sidley Austin LLP and former assistant general counsel at the American Chemistry Council, says because the new provisions have a more distinct focus on use of and exposure to chemicals, the size of the population affected by the new rules will expand from the traditional chemical manufacturers and processors to potentially any manufacturer that incorporates chemicals into their products.

“This bill directs EPA to look at chemicals in the context of their use in a much more pointed fashion than exists today,” Prero said in an interview with Environmental Leader. “To do that, EPA is going to need information on use, which doesn’t necessarily come from manufactures because manufactures will sell chemicals that are used in all sorts of substances. Downstream industries that didn’t necessarily feel a TSCA impact are going to have to start paying attention to what EPA is doing.”

The EPA’s first task under the new bill is to determine which chemicals are in the marketplace. This will require input from chemical manufacturers and processors to identify the chemicals they make and provide this information to the agency.

“Once this accurate chemical inventory has been established, if manufacturers have solid information and date that supports the safety of their chemicals, they are going to want to make sure the EPA has that information,” Prero said.

If the chemical is deemed “high priority” by the EPA, then the assessment — and manufacturer’s involvement — will scale up as the agency will likely ask for additional testing and information.

“Having to amass the chemical data, aggregate it and send it to EPA won’t be a new process for a lot of companies. But it will be for a new purpose, with different regulations and perhaps a different degree of detail,” Prero said. “There’s going to be a learning curve.”

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