By John W. Scanlan, J.D.
The U.S. Environmental Protection Agency may gain from proposed legislation the authority to regulate for safety all chemicals on the market and to restrict new chemicals from going to market, a bipartisan group of members of both houses of Congress said in announcing an agreement to pass the Frank R. Lautenberg Chemical Safety for the 21st Century Act. This would be the first major update of the Toxic Substances Control Act of 1976 (TSCA) (Sen. Tom Udall press release, May 20, 2016).
If it becomes law, the Act would require a systematic safety review of all chemicals in commerce, including those that had been grandfathered when the TSCA was enacted. EPA would be directed to begin its reviews with the “worst” chemicals, including asbestos and any other chemicals it decides are a high priority. After it completed a review for a chemical, EPA would be required to issue a risk management rule for that chemical if its analysis indicated that there was an unreasonable risk. The rule would include a range of options from banning a chemical to providing minimum labeling or notice requirements.
EPA would no longer consider costs as part of its safety review or be required to adopt the least burdensome regulatory requirement. Instead, while formulating the risk management rule, the agency would consider the costs and benefits of a chemical, including the cost effectiveness of the regulation and the economic consequences of the rule.
A manufacturer or processor would be required to notify EPA of its intent to manufacture or process a new chemical or introduce a significant new use for an existing chemical. An affirmative finding of safety would be required before a new chemical could come to market, and the agency would have 90 days to make a determination (or up to 180 days if more time is required).
EPA’s regulatory decisions would preempt state chemical restrictions that conflict with its actions. States would not be permitted to restrict a chemical that EPA found not to present an unreasonable risk or for which EPA has published a risk management rule. States would be required to put on “pause” for up to 30 months any new restrictions while EPA is conducting its own safety assessment of a chemical. However, existing state law restrictions enacted before April 22, 2016, would be grandfathered, as would any actions undertaken by a state pursuant to a law enacted before September 2003. A number of exceptions to the general preemption rule would exist, and EPA could waive preemption under certain conditions.
According to the press release, the bill could pass both houses of Congress before Memorial Day, and the White House has indicated that the President will sign the law.
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