By Tom Butcher, Independent Consultant

Dear Members

Well, much has happened since I last wrote you back in May. Amongst other things, we’ve had: Brexit, Donald Trump prevailing, Cameron resigning, and Hillary Clinton not being indicted. And I’ve been busy speaking at the UN (as I now seem to do every June at the Conference of States Parties to the Convention on the Rights of Persons with Disabilities), and taking my holidays in the north of Cyprus.

You can, however, heave a sigh of relief, as I am not going to talk about any of these!

Instead, I am going to take a quick look at what’s happening here with modernization of the Toxic Substances Control Act (TSCA). A more palatable alternative?

As many of you will remember, the original TSCA was enacted back in 1976. Roll forward 40 years, give or take, and on June 22 this year, after years of negotiation, President Obama signed into law The Frank R. Lautenberg Chemical Safety for the 21st Century Act (LCSA), bi-partisan comprehensive reform legislation to update the regulation of chemicals in the U.S.

As the American Chemistry Council describes it: “Thanks to TSCA reform, America’s manufacturers will have the regulatory certainty they need to innovate, grow, create jobs and win in the global marketplace—at the same time that public health and the environment benefit from strong risk-based protections.” Essentially, until now, the core provisions of TSCA had never been updated or amended since it was enacted all those years ago.

The new Act includes such changes as:

• Subjecting all new and existing chemicals to an EPA safety review
• Requiring EPA to focus on chemicals that are the highest priorities for full risk-based safety assessments
• Strengthening transparency and the quality of science used to make EPA decisions
• Expanding EPA’s ability to require additional health and safety testing of chemicals
• Allowing industry to request that EPA conduct a safety assessment on a specific chemical
• Providing EPA with a full range of options to address the risks of substances including labeling requirements, use restrictions, phase-outs or other appropriate actions
• Setting aggressive and attainable timelines for EPA to complete its work
• Promoting cooperation between state and federal regulators while creating a strong national chemical regulatory system, ensuring interstate commerce is not disadvantaged
• Strengthening protections for the most vulnerable like infants, children and the elderly
• Protecting Confidential Business Information (CBI)

To put things in context, it is interesting to note that, as part of the whole process of updating TSCA, as far back as August 2007, the U.S. Government Accountability Office was asked to “review (by said Senator Lautenberg) the approaches used under TSCA and REACH for (1) requiring chemical companies to develop information on chemicals’ effects, (2) controlling risks from chemicals, and (3) making information on chemicals available to the public.”

As many of us are, perhaps, too well aware, and as described in the GAO findings, there were some significant contrasts between the two approaches, not least the fact that “TSCA places the burden of proof on EPA to demonstrate that a chemical poses a risk to human health or the environment before EPA can regulate its production or use, while REACH generally places a burden on chemical companies to ensure that chemicals do not pose such risks or that measures are identified for handling chemicals safely.”

It will, therefore, now be the task of the EPA to make things “work”. (There may be at least some comfort to be drawn from the fact that its leader, Gina McCarthy, has said that the agency is “eager to get to work.”)

So, what has the EPA got to do? Amongst other things, within the first year alone, “it must complete formal rulemakings, including to establish processes of prioritization, risk evaluation and ‘resetting’ the inventory of chemicals in commerce.” In addition, the agency must, within the next six months, start work on evaluating the risks of at least ten substances.

As June drew to a close, the EPA was as good as its word, publishing a “roadmap” of major activities and important deadlines for the coming year. On a metals front alone, two of its “Early Mandatory Actions” will be to address “Additions to Mercury Export Ban” and “Mercury Inventory”.

It can only be described as refreshing that, when setting out its roadmap, the agency actually said that it “believes that it is important to  engage partners and stakeholders early in the process, and to be transparent as possible.” Now, how welcome is that?!

Or course it remains to be seen just how much engagement there actually will be going forward, but for the EPA to put itself on the line like that is, if nothing else, somewhat refreshing.

And, having passed on such refreshment, I shall now bid recipients of this missive farewell, while, at the same time, wishing them all the best from a rather warm New York.

Yours

Tom Butcher, July 12^th, 2016 ©2016 Tom Butcher

Sources:

American Chemistry Council: Policy –TSCA, https://www.americanchemistry.com/Policy/Chemical-Safety/TSCA/

GAO: CHEMICAL REGULATION – Comparison of U.S. and Recently Enacted European Union Approaches to Protect against the Risks of Toxic Chemicals, http://www.gao.gov/new.items/d07825.pdf

ChemicalWatch: President’s signature sets implementation in motion, https://chemicalwatch.com/48169/tsca-reform-signed-into-law

ChemicalWatch: EPA releases implementation roadmap for reformed TSCA, https://chemicalwatch.com/48353/epa-releases-implementation-roadmap-for-reformed-tsca

EPA: The Frank R. Lautenberg Chemical Safety for the 21st Century Act: First Year Implementation Plan, https://www.epa.gov/assessing-and-managing-chemicals-under-tsca/frank-r-lautenberg-chemical-safety-21st-century-act-2