Did You Know – TSCA Is No Longer Only About New Chemicals?

While the Frank R. Lautenberg Chemical Safety for the 21st Century Act has been long overdue (bipartisan reform has been 40 years in the making) and contains many promising benefits related to chemical safety, there is always a “cost factor” to consider too. Can you “afford” to be poorly prepared if the “new TSCA” (or “TSCA21”) does the following?

  • Costs you a critical raw material for your process (with no approved alternate)
  • Costs you customers to alternate technologies or materials
  • Costs you much higher R&D expenditures to find suitable alternate materials
  • Costs you financially for your share to underwrite the TSCA21 program
  • “Costs” you increased scrutiny by both EPA and OSHA related to your own workers’ safety in handling the hazardous chemicals

So what changes?

As emphasized by Tom Musick in a recent National Safety Council article, the key points are:

  • For the first time, workers are defined as a “susceptible subpopulation” within the chemical safety law.
  • Only five out of 62,000-plus existing chemicals have been banned since TSCA was enacted in 1976.
  • OSHA stated that the agency is looking forward to working with EPA and that the new law will improve worker safety.

Although TSCA21 contains 50,000 words, one phrase within the document could hold the power to improve protections for millions of US workers (and increase EPA enforcement powers). The legislation amends the Toxic Substances Control Act to create specific safeguards for “potentially exposed or susceptible subpopulations … such as infants, children, pregnant women, workers, or the elderly.”  It might be easy to overlook “workers” among the listed at-risk groups. However, stakeholders who have spent years fighting for TSCA reform say the wording is no small feat. The revised law gives the Environmental Protection Agency the power to restrict chemicals based on health risks and better defines a larger, important group (“workers”) that could drive risk assessment.

The intent of TSCA when it was enacted in 1976 was to protect the public and the environment from danger, but it did not grant EPA the authority to regulate the more than 62,000 chemicals in use at the time. EPA could review and regulate only new chemicals introduced after the law went into effect. As a result of this and other red tape, only five chemicals were banned.

“Forty years after TSCA was enacted, there are still tens of thousands of chemicals on the market that have never been evaluated for safety, because TSCA didn’t require it,” EPA Administrator Gina McCarthy wrote in a June 22 blog post on the agency’s website. “And the original law set analytical requirements that were nearly impossible to meet, leaving EPA’s hands tied – even when the science demanded action on certain chemicals.”

On June 22 of this year, President Barack Obama signed the Frank R. Lautenberg Chemical Safety Act for the 21st Century into law. This granted EPA the authority to provide better protections from toxic chemicals for the public and the environment. Its directive to protect workers as a vulnerable population aligns with the work of OSHA, which has lamented outdated permissible exposure limits for chemical hazards and a lack of funding.  So, OSHA has already stated that it is eager to partner with EPA, especially as OSHA faces a possible 3.3 percent budget cut.

“OSHA is reviewing the new law and looks forward to working with EPA as it develops an implementation strategy,” OSHA spokesperson Kimberly Darby told Safety+Health. “We believe the changes will help workers by providing improved safety, health and exposure information for chemicals currently in the marketplace.”

These “changes” accomplish two important things:

  1. TSCA is no longer primarily for “new products” and EPA has a greater role/impact on “existing chemicals”. These could include some of your current raw materials or finished products.  Do you have alternates identified and approved (or at least budgeted for in your R&D budget)?
  1. Along with EPA now having the muscle to force action and restrict harmful chemicals, Section 9(e) of the new legislation, “Exposure Information,” specifies that the EPA Administrator should inform OSHA of any chemical exposures that may be prevented or reduced under another federal law. In other words, your EPA Audit may have an OSHA unannounced audit following close on its heels. Are you prepared?

The next step for EPA is to determine how and where to achieve the greatest impact. The agency has released its first-year implementation plan, which includes an outline for EPA to conduct risk assessments and define high-priority chemicals. EPA said it plans to publish a list of 10 Work Plan chemicals (those that are “fast tracked” for risk assessment) and start a formal risk evaluation on them in mid-December, when the agency also plans to publish a proposed rule establishing its process for evaluating the risk level of high-priority chemicals.

What can you do to be better prepared?  First, know what chemicals are on the Work Plan or contact CTI for assistance in evaluating whether your hazardous chemical(s) will likely come under imminent scrutiny per TSCA21. CTI can also keep you informed on the proposed EPA rules related to their methods of assessing the risk level of the high-priority chemicals. You will then know the “rules of the game” and the near-term “game plan”.  The final step will be to determine a budget for whatever R&D efforts or other strategies which may be needed to allow increased product/ worker safety while providing a “new & improved” (profitable) product.  Those are the challenges posed by TSCA21. Stay tuned….

Published by Stephen Kovatch

Senior Client Manager  Stephen J. Kovatch focuses on assisting clients in establishing corporate regulatory compliance programs in the areas of air, water, and waste management. Mr. Kovatch also provides direction to industrial facility owners who are active in the transaction of contaminated property by defining objectives, coordinating soil and water sampling protocols, risk assessment, and remedial / cleanup activities. He frequently represents clients in property sales negotiations and regulatory agency and insurance proceedings.

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