Changes to the Toxic Substance Control Act (“TSCA”), resulting from the recently passed Frank R. Lautenberg Chemical Safety for the 21st Century Act (“LCSA”), are quickly taking form.  The Environmental Working Group (“EWG”), an environmental group with ties to the toxic tort plaintiff’s bar, recently identified 20 chemicals it believes should undergo high priority reviews.[1] The first ten chemicals on the EWG priority list are asbestos (including asbestos-like chemicals), bisphenol-A (BPA), chlorinated flame retardants , brominated flame retardants, 1-bromopropane, P-dichlorobenzene, phthalates, perchloroethylene, tetrabromobisphenol A, and bis(2-ethylhexyl) adipate.  The second group includes lead, formaldehyde, vinyl chloride, bromoform, chromium-6, styrene, arsenic, ethylbenzene, cadmium, and 1,4-dioxane.  It is likely that EPA will select at least some of these substances as priority chemicals.

Most of these chemicals are widely used, and under the new law will be subject to tougher risk standards that have not yet been clearly defined, but, importantly, will no longer include consideration of costs, benefits, or the feasibility of alternatives.  There is reason for concern:  The U.S. Environmental Protection Agency (“EPA”) recent explanation of the changes, for example, includes a sweeping statement that TSCA, as amended, requires that risk identified in the risk evaluation process must be “eliminated.”[2]  This overly simplistic statement ignores statutory language that requires consideration of economic factors (including cost-effectiveness) in the risk management decision and allows risk to be “eliminated” through labeling and restrictions on use,[3] but will likely fuel the fervor for wholesale bans of chemicals that pose risks. 

The battle lines are being drawn, and industry should move swiftly to play a role in the development of EPA’s implementations measures, to ensure that appropriate unreasonable risk levels and risk management factors are properly considered in the process for determining how the risk from a chemical must be eliminated. 

[1] See http://www.ewg.org/research/under-new-safety-law-20-toxic-chemicals-epa-should-act-now.

[2] See Power Point briefing (June 2016) (The Frank R. Lautenberg Chemical Safety for the 21st Century Act - June 30, 2016 Webinar: Overview available at https://www.epa.gov/assessing-and-managing-chemicals-under-tsca/frank-r-lautenberg-chemical-safety-21st-century-act-june).

[3] 15 U.S.C. § 2605 (b)(2)(A), as amended.