By Patrick D. Joyce, Philip L. Comella, and Craig B. Simonsen

bottleThe U.S. Senate yesterday passed the Frank R. Lautenberg Chemical Safety for the 21st Century Act (Chemical Safety Act).

Sen. David Vitter (R-La.), in an announcement, indicated that the legislation creates a “predictable and transparent federal system to regulate the safety of chemicals based on the latest science, providing greater regulatory certainty to the chemical manufacturing industry and striking a balance between state and federal roles in chemical safety management.”

The 39-year-old Toxic Substances Control Act (TSCA) is the last of the major environmental laws passed in the 1960s and 70s that has not been modernized. While thousands of chemicals are currently in existence, as many as 1,500 new chemicals come on the market each year.  Over TSCA’s history, the Environmental Protection Agency (EPA) has only restricted five chemicals as posing an “unreasonable risk” and has only prevented four new chemicals from going to market – out of more than 23,000 new chemicals manufactured since 1976.

As summarized by the Senators, the bill as it passed the Senate would:

  • Require safety reviews for all existing chemicals active in commerce;
  • Going forward, require EPA to review and approve new chemicals that come on the market each year;
  • Ensure the EPA takes into consideration only the impact on health and the environment when determining whether to allow a chemical to be sold or manufactured;
  • Require chemical companies to contribute to the cost of safety assessments;
  • Prevent industry from hiding information on their chemicals from the public view;
  • Preserve strong private rights of action to hold industry accountable for negligence and harm; and
  • Explicitly require that the EPA base its decisions on how chemicals impact the most vulnerable populations — children, pregnant women, the elderly, and chemical workers.

In addition, the bill will promote transparency by requiring up-front substantiation of claims to protect confidential commercial information. The bill also allows for judicial review of “low priority” designations, safety determinations, regulatory rulemakings, and decisions on State waiver applications.

Before the Chemical Safety Act can be presented to the President for signature, a conference committee must reconcile the Senate and House versions of the bill.  Sen. Barbara Boxer (D-Ca.) had been holding up passage of the Senate version in an attempt to strengthen protections provided by the Act, but will now seek those additional protections during the reconciliation process.

While it is unclear what the full impact of the Chemical Safety Act will be, one thing is certain: EPA will now have more authority to regulate toxic chemicals and the chemical approval process will be more rigorous than ever before.  Stay tuned for an update when the final reconciled Act is presented to the President for signature.