Bipartisan Bill Makes TSCA Reform a Realistic Possibility

After a number of failed Democratic-championed bills over the past decade, U.S. Senators David Vitter (R-LA) and Frank Lautenberg (D-NJ) have introduced a bipartisan bill aimed at reforming the Toxic Substances Control Act of 1976 ("TSCA"). [1] The "Chemical Safety Improvement Act of 2013" is co-sponsored by a bipartisan group of 14 U.S. Senators and could lead to the first Congressional reform of TSCA in the Act's 37-year history.

The bipartisan legislation would make significant changes to TSCA, which has been widely criticized by both industry and public interest groups for its ineffectiveness.  Most notably, the bill would call for new chemical safety screening procedures.  Under the current provisions of TSCA, the U.S. Environmental Protection Agency ("EPA") can only require chemical safety testing after evidence is provided which demonstrates a particular chemical is unsafe.  Under this structure, EPA has only required safety testing for approximately 200 chemicals (out of more than 84,000 that are registered).  Further, since TSCA's enactment in 1976, only five chemicals have been banned from the marketplace for safety reasons.

Under the proposed legislation's screening provisions, all active chemicals being used in commerce would be evaluated and categorized as a "high" or "low" priority based on the potential risks to the environment and human health.  High priority chemicals would then be subject to further evaluation by the EPA.  EPA would have the exclusive authority to take necessary actions to protect the public from unsafe chemicals, including banning the chemical from use altogether.  New chemicals would also be subject to screening by EPA before being introduced into commerce and could also be banned from the marketplace if found to be unsafe.

In performing these safety evaluations, the bill would require EPA to focus on vulnerable members of the public, such as children and pregnant women.  The proposed legislation would also give EPA authority to obtain certain safety information from chemical manufacturing companies, but EPA is required to rely on existing information first.  Additionally, the legislation provides protection for trade secrets and intellectual property to avoid public disclosure.

Lautenberg has been harnessing support for TSCA reform since 2005, including his "Safe Chemicals Act," which was reintroduced again in April of this year.  These efforts have largely failed to garner any GOP support.  Vitter, the ranking member of the Senate Environment and Public Works Committee, had also been working on his own TSCA reform legislation.  The Chemical Safety Improvement Act of 2013 represents a compromise between the two.

Some public interest groups have criticized the bill for abandoning certain provisions of Lautenberg's Safe Chemicals Act, including hard deadlines for EPA to complete its reviews.  They also claim the bill lacks adequate funding provisions to ensure completion of the reviews.  However, the bill has garnered mutual support from members of the chemical industry, such as the American Chemistry Council, and environmental groups, such as the Environmental Defense Fund.  It ultimately remains to be seen whether the bill will win enough support from both sides of the aisle, but it does represent the first significant chance at real TSCA reform in decades.

To learn more about the Chemical Safety Improvement Act of 2013 and its potential impacts, please contact Kenneth von Schaumburg or your Clark Hill Government and Public Affairs professional.