Brandon NeushaferThe Congressional effort to reform the decades-old Toxic Substance Control Act (TSCA) has managed to produce two competing bill from the House and Senate that are now being negotiated. Last year, it looked as if passage would be imminent by the start of 2016. Then the expected date kept getting pushed down the road again and again.
The death of Supreme Court Justice Antonin Scalia caused some to speculate that a battle over the vacant seat could thwart a host of bipartisan efforts — including TSCA reform — and effectively shut down Congress. But just days ago, Sen. Tom Udall (D-New Mexico), who co-authored the Senate version of the reform bill, said he is confident Congress would pass chemical regulation reform at some point this year.
Most importantly: What will reform mean for chemical manufacturers?
Right now, the general difference between the competing bills is that the Senate version is more comprehensive and gives the Environmental Protection Agency more authority to regulate. The House version is a little more permissive in its language, often stating that the EPA “may” take certain measures, instead of mandating that they must.
Because compromises are still being made about this issue, along with other discrepancies, it’s impossible to know exactly what the final rules will look like. Nevertheless, there’s enough certainty with some aspects of the reform that it’s worth knowing what kind of changes lie ahead.
“There are certain areas where the bills seem pretty aligned, or the differences aren’t that significant, where you could see a pretty clear pathway to how it gets resolved,” says Brandon Neuschafer, an environmental lawyer who works in the chemical and food industries to help companies stay compliant with regulations.
Neuschafer has been monitoring the bill closely so he can help clients gear up for the new rules. Here’s a look at what he says manufacturers can likely expect.
Laws Like Prop 65 Aren’t Going Anywhere: Several states have voiced concerns that regulations like Prop 65, California’s law that requires companies to list chemical ingredients that could cause cancer, birth defects or reproductive issues, could be undermined by new federal laws. But Neuschafer says that’s not likely.
“States are going to have a greater ability to regulate chemicals in ways that they see fit,” Neuschafer says. “When you look at the preemption language in the reform bills, they currently do.”
Both bills allow states to co-enforce federal regulations through identical state laws, while preserving laws like Prop 65 from preemption. They also protect state laws regarding waste disposal, and water and air quality.
But Neuschafer admits that if regulations are contested, it’ll ultimately be up to the courts to decide how much preemption there really is.
“I could stand corrected [about state laws] five years from now,” he says.
It Could Take Longer to Get New Chemicals Approved: Under the House version, the EPA review process for new chemicals is similar to the process in place now: Manufacturers provide information about a new chemical and the EPA could take no action at all, and after a certain period of time, you are allowed to import or manufacture that chemical.
But under the Senate version, if you want to manufacture a new chemical, it will require affirmative evidence that the chemical is safe, and there will be a mandatory review by the EPA.
The Way Chemicals Are Assessed Will Change: Currently, the EPA has to consider the cost to manufacturers of mitigating the use of a chemical before it can impose restrictions. Under both versions of the reform bill, costs will no longer factor into the EPA’s assessments and it will instead focus on health and safety.
Companies Can’t Hide Behind CBI: Right now, Neuschafer says that if the EPA requests information about chemical ingredients, a company can claim that it’s Confidential Business Information (CBI) and that could be the end of it. This will likely change.
“The theory is that you need these protections so that you don’t blow your R&D budget on another company stealing your formulations,” Neuschafer says. “But just because something is confidential, that doesn’t mean you can’t provide it to the EPA. And the EPA is going to require more justification of CBI.”
Compliance Costs Could go Up: Increased regulations could definitely add costs to operations in a number of ways. First, there’s the increased potential for EPA fees. Although, Neuschafer says that probably won’t be where companies see costs go up. Instead, companies can expect to spend more time and money generating reports on chemical safety.
“If you have to take 12 to 18 months to develop a study and submit reports, that may delay you getting your product to market,” Neuschafer says. “These delays or barriers may not have been there before.”
There is an Upside: On a more positive note, the new regulations could streamline the rules and make the compliance process more efficient.
“Even if it means in the grand scheme that there’s more cost, or the potential for additional restrictions...industry really likes certainty and predictability,” Neuschafer says. “It makes it a lot easier to plan when you know what’s it going to take to bring a new product to market.”
