INDIANAPOLIS—After a long, slow process, one of the most influential laws in the chemicals and adhesives industries is getting an overhaul.
In June, the Frank R. Lautenberg Chemical Safety for the 21st Century Act was signed into law by President Barack Obama. The law is the first major reform to the Toxic Substances Control Act, one that Mark Duvall, principal at Beveridge and Diamond who heads the firm's TSCA practice, said was badly needed.
Duvall addressed key highlights from the reform at the Adhesive and Sealant Council's 2016 Fall Expo, held recently in Indianapolis.
The biggest changes come in TSCA's Section 6, which was the key element that Duvall said didn't function properly under the old law. The hole in Section 6 was exposed in 1991, when the Environmental Protection Agency tried to ban asbestos under Section 6, and the court of appeals ruled that the agency hadn't come close to satisfying the requirements. Duvall said this decision led to EPA realizing it couldn't do much under Section 6, and for the last 25 years, the agency hasn't proposed any action under Section 6.
“TSCA was broken,” Duvall said. “It continued to function, but didn't function the way it was intended and did not function effectively in some aspects. In other aspects it was working just fine.”
Under the Lautenberg Chemical Safety Act, EPA can prioritize chemicals, conduct a risk evaluation and then conclude whether or not to regulate the substance under Section 6. Duvall said EPA will draw 10 chemicals from the 2014 TSCA Work Plan list by December 2016.
Section 5 also saw significant changes. He said EPA now has to make affirmative findings on pre-manufacture notices and significant new notices within 90 days. EPA can choose to restrict the substance through a rule in that it “presents” unreasonable risk of injury or health to the environment; issue an order restricting the substance pending further information if it “may present” such risk; or allow manufacture/use to commence because the substance is “not likely to present” such risk.
Duvall said that once a determination to manufacture or use a substance has been made, the firm does not have to wait for the 90 day period to be complete. Prior to the enactment, if EPA were to drop chemicals from review before the 90 day period had ended, companies still had to wait for the period to expire before manufacturing could commence.
Other changes highlighted by Duvall include:
• Section 4—Testing provision. EPA used to have to go through a three-year process to get manufacturers to start testing. Now EPA can order a process to start testing, and testing can begin in a matter of weeks.
• Section 8—Recording and recordkeeping, inventory reset. The new law allows EPA to make an active chemicals list, drawn from the current inventory list of about 84,000 chemicals and due by June. Manufacturers are asked to provide a list of chemicals manufactured within a 10-year window prior to the enactment of the new regulation. Those chemicals will go on the active substances list, the rest on the inactive list. Those on the inactive list cannot be manufactured unless EPA is notified to make them an active substance.
“It's not a big effort to make them an active substance,” Duvall said. “But if you forget to do that, you'll be in violation. You not only now have to check the inventory, but you have to check whether or not it's an active substance.”
• Section 14—Change to confidentiality provisions, adding much stronger provisions on substantiation and a 10-year limit on confidentiality claim. Unlike claims prior to enactment, these claims expire in 10 years unless they are re-filed.
• Section 26—EPA also now is held to science standards, forcing the regulatory body to make its decision based on the scientific evidence.
ASC is taking a wait-and-see approach to the reform.
“We're really keeping an eye on what kind of chemicals are on that priority list that EPA is going to be focusing on and whether or not any of our chemistries are going to be negatively targeted for regulation,” ASC President William Allmond said. “Right now it's wait and see. We're off to a slow start, but it's a massive change to one of the largest environmental regulations here in the U.S. By the spring, we'll have a much better idea of what areas we'll actively engage EPA in their implementation of TSCA.”