Thursday 22 June 2017
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Toxic Substance Control Tightening

Mark Shaw is a partner in the law firm of MacDonald Illig Attorneys. He is chairman of the Firm’s Environmental Law Group and has extensive experience in handling environmental litigation, compliance and permitting matters.

The Toxic Substances Control Act (“TSCA”) is a little known federal environmental law enacted in 1976 that recently was overhauled with impacts that will reverberate throughout the energy industry and beyond. TSCA regulates the use of chemical substances by manufacturers, importers, processors and distributors. TSCA’s purpose is identifying chemical substances presenting an unreasonable risk of injury to health or the environment and controlling the use of such chemicals. TSCA presently restricts the use of polychlorinated biphenyls (PCBs), asbestos, radon and lead-based paint.

TSCA gives the U.S. Environmental Protection Agency (USEPA) authority to require manufacturers, importers and processors to test any chemical substances that may present an unreasonable risk of injury to health or the environment and to create an inventory list of each chemical substance manufactured or processed in the United States. TSCA prohibits a person from manufacturing or processing a new chemical substance not on the inventory list or initiating a significant new use of an existing chemical substance on the list without first notifying USEPA. TSCA requires that any person who manufactures, imports, processes or distributes in commerce a chemical substance to immediately notify USEPA if they obtain information reasonably supporting the conclusion that such substance presents a substantial risk of injury to health or the environment.

Significant Changes
TSCA recently was amended after years of efforts to fix a number of recognized flaws. For instance, USEPA’s ability to evaluate the risks posed by existing chemicals was limited, resulting in the “grandfathering” of 62,000 existing chemicals without a risk assessment. The Frank R. Lautenberg Chemical Safety for the 21st Century Act (“Act”) was signed into law in June 2016. The Act made a number of significant changes to TSCA that will have long-term effects on industry.

First, the Act requires USEPA to evaluate the safety of existing chemicals and provided USEPA with a firm schedule to follow for conducting those evaluations. USEPA was required to identify the first 10 existing chemical substances on which to complete risk evaluations within three years. These include some widely used chemicals: methylene chloride, tetrachloroethlylene (“perc”or “PCE”) and trichloroethylene (“TCE”). USEPA also identified five persistent, bioaccumulative and toxic chemicals to be evaluated, including isopropyl phenol phosphate (3:1), which is used as a flame retardant and 2,4,6 -Tris(tert-butyl) phenol, used as an antioxidant additive for fuel, oil, gasoline or lubricants. If USEPA concludes an unreasonable risk exists, it must ban, phase out or restrict the use of the chemical, without regard to cost.

Second, the Act requires USEPA to designate chemical substances on the inventory as either “active” or “inactive” in commerce. In January 2017, USEPA has proposed a regulation requiring manufacturers to notify USEPA of any chemical substances on the TSCA Inventory that were manufactured or imported during the ten-year period before June 21, 2016. If substances are not identified, they will be designated “inactive.” The regulation has yet to be finalized.

Third, a party’s ability to rely on Confidential Business Information (“CBI”) will be more limited. The Act has shifted the burden of proving CBI more heavily on the person seeking it, and any protection will only last 10 years without a request to renew.

Finally, the Act contains preemption language preventing states from regulating those chemicals that USEPA has determined are not a risk. Thus, USEPA’s determination as to a chemical will be the final word.

What’s Next?
The activity on TSCA generated by the bipartisan passage of the Lautenberg Act is just beginning. The impact the new administration will have on that activity has yet to be seen. The challenge for the administration is that much of this activity is required by the Act with deadlines and is not discretionary. There will be more to come.

For additional information, contact Mark Shaw at MacDonald Illig Attorneys at 814/870-7607 or