The Senate is poised to take up a bill to amend the Toxic Substances Control Act (TSCA), perhaps as early as next week. Supporters of the bill continue to overstate (see also here) the benefits of the legislation, while downplaying or ignoring its flaws — flaws that have led almost the entire environmental community to withhold its support, including more than 400 organizations that are part of the Safer Chemicals Healthy Families coalition. (NRDC is a member.) Supporters of the Senate bill generically claim that it will “protect America’s families, especially children, from harmful chemicals that are present in everyday consumer products.” But one key provision of the bill will actually make it harder for EPA to identify uses of chemicals of concern in everyday products, and to prevent their importation from overseas. And industry is pushing this precisely because EPA is finally starting to act to protect the public against imported products that contain toxic chemicals.
Those who recall the Senate mark-up of the bill may be surprised to hear this. At the mark-up, industry-written (or supported) language that weakened EPA’s current import authority was removed from the bill, which was an important improvement. But as part of that deal, new language was added that weakens EPA’s current authority under a different part of the law, but is designed to have a similar, and arguably worse, effect.
The current provision creates additional legal hurdles before EPA can require notification about products that contain toxic chemicals the agency believes could harm public health or the environment. The new provision is directed at EPA’s authority to issue Significant New Use Rules (SNURs). These are rules EPA issues when the agency wants advance notice about the new use of a chemical that could have potential to harm human health or the environment.
Under current law, one of the few effective steps EPA can take to protect the public is to require notice before a new use of a chemical is adopted, which EPA does by issuing a SNUR. A SNUR requires EPA to be notified at least 90 days before a significant new use of the identified chemical (or group of chemicals) begins. This gives EPA an opportunity to obtain more information if necessary and make a decision whether limitations should be imposed on the production or use of the chemical to protect public health or the environment. This kind of assessment cannot typically be done up-front, because EPA does not at that point have the information about the potential use, or the full universe of potential uses, to sufficiently analyze the hazards and exposures attendant to that new use. If EPA does not act within 90 days of receiving the notice, then the entity that submitted the notice is free to use the chemical as proposed.