The U.S. Toxic Chemicals Safety Act of 2010, H.R. 5820, a new bill introduced by U.S. Representatives Bobby Rush and Henry Waxman, proposes to change how chemicals that are manufactured or imported into the United States are regulated. The bill places the burden on chemical manufacturers to demonstrate to the U.S. Environmental Protection Agency (EPA) that their chemicals are safe. It replaces the current law that allows chemicals into commerce until EPA demonstrates that the chemicals pose an unreasonable risk to health or the environment.

TSCA

Currently, the production of chemicals in the U.S. is regulated by the Toxic Substances Control Act (TSCA) of 1976. Under this act, the EPA can limit the production or use of a chemical only after it has determined that the chemical presents an unreasonable risk of injury to human health or the environment. Unreasonable risk exists if the chemical’s harm to health or environment outweighs the benefits of having a chemical in commerce. The EPA considers the effects of the chemical on human health and the environment, the benefits of the substance, the availability of substitutes and the economic consequences of a proposed use limit. If the EPA decides to regulate the chemical, it must do so using the least burdensome requirements. Since 1976, the EPA has regulated only five chemicals under the unreasonable risk standard:

• PCBs
• chlorofluorocarbons
• dioxin
• asbestos
• hexavalent chromium

Problems with TSCA have been noted, including that the “unreasonable risk” standard makes it nearly impossible for EPA to limit harmful chemicals. For example, the courts overturned the EPA’s attempt to ban the use of asbestos. In contrast, Denmark, Germany, Italy, the Netherlands, Norway and Sweden, which regulate chemicals differently, have successfully banned the mining, production, sale, use, import and export of asbestos. Since January 2005, the marketing and use of asbestos-containing products has been banned in the European Union.

Chemical Management in the European Union

The European Union (EU) has taken a different approach to managing hazardous chemicals. The EU’s Registration, Evaluation and Authorization of Chemicals (REACH) legislation, which went into effect in 2007, puts the burden on chemical companies to demonstrate that the chemicals they put into the market are safe. Manufacturers rather than regulating government agencies are required to develop and share information on the effects of chemicals on human health and the environment. REACH works by requiring prior authorization from the European Chemicals Agency to use listed chemicals. Chemicals that require prior authorization include those with the potential for bioaccumulation, carcinogenicity and reproductive toxicity. An authorization is granted if the applicant can demonstrate that the risks from manufacture, use or disposal of the chemical can be controlled.

The newly-proposed U.S. bill shares some common characteristics with the EU’s REACH in that it also shifts the burden to manufacturers to demonstrate safety. The proposed act provides that “the manufacturers and processors of a chemical substance or mixture shall bear the burden of proving that the chemical substance or mixture meets the safety standard.” The bill also proposes to require the EPA to list 300 chemicals and make safety standard determinations for them within 18 months of the bill’s passage. The first 300 chemicals will be chosen based on their risk, presence in biological and environmental media, toxicity, persistence and bioaccumulation. Chemicals will be removed from the list when a safety standard determination is made. New chemicals will be periodically added, evaluated and removed from the list until all chemicals in commerce have had a safety standard determination.

The bill is expected to be reintroduced in the next session of Congress.

Click here to access the bill.

About the Author

Bozana Lazic is an associate in the Cleveland office of Roetzel & Andresswhere she practices environmental law. Her practice focuses on environmental compliance audits, public-private brownfield redevelopment, and CERCLA/RCRA cost recovery litigation.

Photograph: Speaker by Brian Lary, Madison, Wisconsin, U.S.A.

More Information about TSCA in the EHS Journal: Download the TSCA Inventory

Return to the EHS Journal Home Page