This piece was originally published in the July 2016 issue of electroindustry.
Jonathan Stewart, Government Relations Manager, NEMA
The Toxic Substances Control Act (TSCA) was passed in 1976 to give the U.S. Environmental Protection Agency (EPA) authority to regulate the manufacture, distribution, and disposal of chemicals in the United States. Since that time, the only major amendments to the act have been the additions of three titles dealing with asbestos, radon, and lead. TSCA’s current Title I, Control of Toxic Substances, contains largely the same provisions and requirements as it did in 1976.
Shortly before this magazine went to press, the U.S. Senate and House of Representatives passed HR 2576, The Frank R. Lautenberg Chemical Safety for the 21st Century Act, which contains a major overhaul of Title I. Many of the changes aim to facilitate federal action and, by extension, the preemptive effects of those actions on state and local laws. Some of the more salient provisions address prioritization, risk evaluation, risk mitigation, and preemption.
HR 2576 requires the EPA to effectively triage all 85,000 chemicals on the TSCA inventory into two categories: high priority and low priority. A high-priority chemical substance is one that EPA deems “…may present an unreasonable risk of injury to health or the environment under the conditions of use, including susceptible subpopulations.” All other chemicals are low-priority. The EPA is not allowed to take cost or other non-risk factors into consideration when prioritizing chemicals.
In the new bill, there are three ways in which a chemical will undergo a risk evaluation. First, within 180 days of enactment, the EPA must pick 10 chemicals from the TSCA Work Plan and begin a risk evaluation. Second, every chemical designated as high priority will receive a risk evaluation. Third, chemical manufacturers may request that the EPA perform a risk evaluation on a given chemical. It is up to the EPA to decide which manufacturer requests to grant, but 25 to 50 percent of ongoing risk evaluations must emanate from manufacturer requests.
After a risk evaluation is complete, the EPA has one year to propose a rule and up to two more to finalize it (assuming the chemical was deemed to present an unreasonable risk to health or the environment). There is a mandatory exemption for replacement parts of complex goods produced prior to enactment, provided that the replacement part does not significantly contribute to the risk.
An EPA determination that a chemical substance does not pose a risk and EPA action to mitigate a chemical risk both have preemptive effects on state and local laws. However, there are several exceptions to this. For example, state and local laws on the books prior to April 22, 2016, will not be preempted. The same goes for future state regulatory action promulgated under the authority of a law passed prior to August 2003.
How TSCA reform affects NEMA
TSCA requirements in current law and HR 2576 only apply to chemical manufacturers and processors. However, NEMA members that do not qualify as either should still closely follow the new policies and procedures that the EPA is mandated to develop under the new language because chemical supply could be impacted. Some of these may be chemicals used to make components and sub-components of NEMA products. The EPA has one year from the date of enactment to begin implementing its new policies. Next summer could be a critical time for the U.S. chemicals industry.