Risk Management — If EPA determines additional restrictions are required, it must establish these and the magnitude of risk. These restrictions include warnings, recordkeeping, testing, quantity limitations, notices to value chain, bans, and phase-outs.
Confidential Business Information (CBI) — Specific chemical identity is protected under S. 1009 if claimed confidential and not waived, even if the information is embedded in a health or safety study. Confidentiality lasts as long as requested by the submitter or as EPA deems reasonable.
Preemption — CSIA would make certain EPA actions retrospectively and prospectively preempt state requirements. Decisions by EPA to designate a substance as high or low priority preempt state regulations. Existing requirements would continue until a safety determination is made. States may seek waivers, but must meet eligibility criteria. EPA safety determinations are admissible in state tort actions as determinative evidence of whether the chemical meets the safety standard.
Senator Barbara Boxer (D-CA), EPW Committee Chair, has expressed concern with the preemptive effect of S. 1009 and was harshly critical of this aspect in an EPW Committee hearing on July 31, 2013. The California Department of Toxic Substances Control (DTSC) has also weighed in, stating it is “extremely concerned” with the bill.
S. 1009 is the first bipartisan bill reforming TSCA. Industry groups and prominent non-governmental organizations, including the Environmental Defense Fund, support it. The U.S. House of Representatives has yet to introduce TSCA reform legislation, but convened two oversight hearings on TSCA this session.
The stakes are high and the outcome far from uncertain in this area. What is certain, however, is that legislation is long overdue and badly needed to restore public confidence in the federal chemical regulatory program, to address more effectively chemical risks, and to ensure domestic chemical management is no less robust as those that have emerged in the European Union, Canada, and developed economies elsewhere.
