Expert's Opinion

Regulation of U.S. Chemicals Faces Biggest Change in 40 Years

By Peter Mayberry, Mayberry & Associates | May 26, 2016

Mayberry Discusses Frank R. Lautenberg Chemical Safety for the 21st Century Act

Chemical manufacturers and industries that use their products have a history of adamantly opposing change to the Toxic Substances Control Act of 1976 (TSCA), but that came to an end on May 23, 2016 with passage of the Frank R. Lautenberg Chemical Safety for the 21st Century Act (LCSA) in the U.S. House of Representatives.   The measure, which passed the House by a vote of 403-12, is now on its way to the U.S. Senate where it is expected to be approved quickly and then to the White House where President Obama is expected to sign it into law.

TSCA law is complicated but a primary component requires that the U.S. Environmental Protection Agency (EPA) maintain a list of chemicals – the TSCA inventory – that are considered to be safe for human health and the environment.  Back in 1979 when this inventory was originally compiled, however, all chemicals on the U.S. market at the time were presumed safe for human health and the environment.   

Many of the more than 83,000+ chemicals on the TSCA inventory, therefore, were grandfathered onto the inventory even though some had never been tested for safety. 

LCSA changes this by requiring that EPA develop new safety standards to ensure “no unreasonable risk of harm to health or the environment” will result from exposure to a chemical under its approved conditions of use.  These standards cannot be based on cost or other non-risk factors, and existing TSCA provisions which required EPA to use the “least burdensome” means of adequately protecting against unreasonable risk from chemicals have been removed.

Chemicals thought to cause cancer or other health problems, and those that persist in the environment and/or bio-accumulate in the food chain are specified as priorities for EPA action; but manufacturers can petition for EPA review of chemicals not known to cause adverse effects and can facilitate these reviews by offering to pay for the work. 

If a chemical can’t meet new EPA safety standards, the Agency has the ability to ban its use in the United States.  Moreover, LCSA requires that EPA prohibit or restrict the manufacture, processing, use, distribution, or disposal of a new chemical – or a significant new use of an existing chemical – if that chemical is not likely to meet safety standards.

Support for LCSA was diverse with everyone from the American Chemistry Council and the National Association of Chemical Distributors calling for its passage alongside some usually unlikely allies including the Environmental Defense Fund and the National Wildlife Federation.   Other noteworthy supporters include the American Fiber Manufacturers Association; the Chemical Fabrics and Film Association; INDA, Association of the Nonwoven Fabrics Industry; the National Council of Textile Organizations; the Personal Care Products Council; the Textile Rental Services Association; and the Carpet and Rug Institute.  

For the nonwovens industry, the plainest foreseeable impacts should be negligible at worse – i.e., possibly some more reporting and recordkeeping requirements, those sorts of things.  With the EU REACH initiative in place for nearly a decade now, the safety of chemicals used in nonwovens tends to be well established, so meeting certification requirements shouldn’t be an issue. 
Where things could get dicey, however, is if significant new uses for TSCA-listed chemicals can be found for nonwoven applications (SAPs for instance).  Under LCSA there could be delays in the process that didn’t exist before.  But that should be a small price to pay for a more globalized approach to chemical safety.

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