October 2016

The New TSCA: Implementation Underway

In June, the Consumer Specialty Products Association (CSPA) and member company representatives participated in an historic event as President Obama signed into law the Frank R. Lautenberg Chemical Safety for the 21st Century Act (LCSA). The new law modernizes the Toxic Substances Control Act of 1976 (TSCA), which has served as the primary legislative authority for the U.S. Environmental Protection Agency (EPA) to manage chemicals in commerce for four decades. The modernized TSCA is the result of years of behind-the-scenes work by CSPA, Congress, EPA and a broad coalition including industry and non-governmental organizations (NGOs). Consensus among all of these diverse interests resulted in near unanimous support by both houses of a strongly divided Congress.

When I entered the industry in 1980, TSCA was new and early in its implementation. We spent the 1980s providing comments on new EPA proposals, attending Congressional oversight hearings and conducting studies on the potential impacts TSCA could have on innovation in our industry sector. Science advanced. Public policy evolved but TSCA remained the same for 35 years. As a result, states initiated aggressive chemicals management efforts. Five or so years ago, it became clear to the regulated community, as well as to special interest groups, that TSCA needed to be modernized. CSPA, other trade associations and companies led the effort to make that happen.

Working with a diverse group of stakeholders groups, CSPA’s Phil Klein, Executive VP of Legislative & Public Affairs; Chris Cathcart, President & CEO; Joe Yost, Senior Director of Strategic Issues Advocacy; and Ben Dunham, Consulting Counsel, spearheaded efforts to work closely with Congressional staff on a new federal legislative framework for chemicals management. Among CSPA’s primary goals were to assure that the law remained risk-based, that confidential business information was protected and that it preempted differing state actions. All were met.

Two weeks after the Lautenberg Act was signed, EPA issued its first-year implementation plan with 17 actions identified and five more scheduled for the second year. Many of those actions will directly impact “processors”—the term used under TSCA and the LCSA to identify chemical users such as product formulators. Other actions aimed primarily at chemical manufacturers and importers will also likely impact the consumer, industrial and institutional products industry sectors.

The new TSCA has been modernized in virtually every section. TSCA is now more robustly risk-based with greater emphasis on use and exposure—which puts more responsibility on formulators. This means that many CSPA members will need to play a much more active role in the new TSCA than under the previous statute. EPA is selecting “high priority” chemicals for risk-based safety assessments (risk evaluations) as well as “low priority” chemicals. While we believe that the vast majority of the chemicals will be classified in the latter group, we want EPA to combine hazard information with targeted use and exposure information to ensure science-based risk decisions minimize the impact on industry. CSPA’s Research & Regulatory Management Council is equipped to create new consortia for developing and collecting the required data to protect chemical uses under TSCA, just as it does now for pesticides.

EPA issued its first notices for public comment in the Federal Register in July and plans to release proposed rules in December. Coordinating input from CSPA member companies are Tim Brown, Associate Counsel and Steve Bennett, Senior Director for Scientific Affairs. In August, they developed and filed three sets of public comments on those notices. The three notices dealt with the following:

 

  • Risk-Based Prioritization Procedural Rule—CSPA comments commit to working with EPA to provide data needed for prioritization and urges that EPA assure transparency in the process.

 

  • Risk-Evaluation Procedural Rule—CSPA comments commit to provide use and exposure data needed to narrow the scope of the risk assessment and urged EPA to minimize data burdens and to identify uses below the risk threshold.

 

  • Fees for the Administration of the Toxic Substances Control Act—CSPA comments urge EPA to develop a simple and transparent fee allocation process and assure appropriate cost-sharing.

 

We will keep readers updated on TSCA implementation in future columns as CSPA represents the interests of our industry sectors. Please don’t hesitate to email me ([email protected]) if you would like to be part of that process.