Environmental Law: A New Formula For Chemical Regulation?
When the TSCA was enacted in 1976, chemical substances then in commerce were added to the inventory. In general, chemical substances on the inventory may be produced by any party for any use without going through the evaluation for new chemical substances described above. The EPA does have the opportunity to collect safety data — manufacturers and processors of existing chemical substances are required to report results of safety studies and any adverse events related to the chemical substance to the EPA, and the EPA is authorized to mandate safety testing of existing chemicals.
If the EPA finds that there is a "reasonable basis to conclude" that the manufacture, processing, distribution, use, or disposal of a chemical substance presents an "unreasonable risk of injury to health or the environment," the EPA may restrict (or even ban) the manufacture and use of the chemical substance. The EPA may only impose restrictions relative to a chemical substance to the "extent necessary to protect adequately against such risk using the least burdensome requirements" under the current TSCA regime.
In practice, the EPA has rarely used its authority to restrict existing chemicals under the TSCA. Famously, in the 1991 case Corrosion Proof Fittings v. EPA, the U.S. Court of Appeals for the Fifth Circuit overturned rules phasing out (and then banning) asbestos. Under the court's reasoning, the EPA had not adequately shown that a ban on asbestos was the least burdensome means of addressing the risks presented. The Corrosion Proof Fittings case is often cited by stakeholders arguing for greater EPA authority to restrict existing chemicals.
2013 Proposed Legislation
The Chemical Safety Improvement Act would maintain many of the features of TSCA, including the current process with respect to new chemicals. Several key differences between TSCA and CSIA are discussed below.
Policy And Scope
The TSCA's stated policy goal is to "regulate chemical substances and mixtures which present an unreasonable risk of injury to health or the environment" and to address "imminent hazards" posed by the use of chemical substances. While the CSIA is also built around the policy framework of protection against unreasonable risk, it includes the policy statement that chemicals "should be safe" for their intended use. This may presage an enforcement philosophy geared more towards the precautionary principle than the current regime (in brief, the precautionary principle states that those proposing to take an action that may have adverse impacts on human health or the environment bear the burden of showing that it will not be harmful).
Evaluation Of Existing Chemicals
As noted above, some stakeholders fault TSCA for "grandfathering" existing chemicals without a systematic evaluation of safety. The CSIA would address this concern by requiring safety evaluations of certain existing chemicals. As a first step, the EPA would be required to designate existing chemicals as "high" or "low" priority for evaluation. This priority designation would be subject to public notice and comment, but would not be considered a judicially reviewable final agency action.
Those chemicals identified as high priority by the EPA would be subject to a safety assessment. The CSIA sets forth detailed guidelines on how safety assessments are to be conducted, including the directive that the EPA "shall employ the best available science and risk assessment principles in existence at the time" in evaluating chemicals. Following the safety assessment, the EPA would be required to promulgate rules, as appropriate, to mitigate risks presented by the substance. These rules may vary in their impact from labeling requirements and production limits all the way to bans on production and use.