WASHINGTON, June 8, 2016 - Baker Botts L.L.P., a leading international law firm provided a summary of key changes in the Toxic Substances Control Act (“TSCA”) reform passed by the U.S. Senate on June 7, 2016.
The U.S. Senate by a voice vote passed legislation to reform the Toxic Substances Control Act (“TSCA”). The U.S. House of Representatives passed the same bill, known as the Frank R. Lautenberg Chemical Safety for the 21st Century Act, on May 24, 2016, by a vote of 403-12. The bill will now go to President Obama, who released a statement on May 23 strongly supporting the proposed TSCA reform.
Once it becomes law, the bill will modernize and update TSCA for the first time since its enactment forty years ago.
A summary of the key reforms:
a) Regulation of Existing Chemicals. In a major change from the existing law, the new law will require EPA to evaluate, to some degree, all existing chemicals under TSCA Section 6 that are already used or sold in commerce within the U.S. EPA must impose regulations that will ensure a chemical does not present an unreasonable risk of injury to health or the environment.
b) Regulation of New Chemicals. The new TSCA Section 5 establishes specific time deadlines of 90 to 180 days for EPA to make an affirmative finding as to whether or not a new chemical poses an unreasonable risk before commercial activities with a new chemical may commence. If EPA fails to make a timely determination, the submitter’s filing fees will be refunded, but an affirmative EPA determination will still be required before the chemical can be manufactured or marketed for commercial use or sale. Such manufacturing or marketing will be prohibited where EPA determines that a new chemical may present an unreasonable risk, or insufficient information is currently available to make a determination.
c) Federal Preemption of State Law. The new TSCA will preempt state regulation of chemicals more broadly than under current law; however, the final compromise bill does not go as far as some proposed reforms would have.
d) Confidential Business Information (“CBI”). The reform legislation preserves the ability of companies to protect CBI submitted to EPA from public disclosure, but imposes new written CBI substantiation requirements and limits CBI designations to a ten-year period (subject to possible renewal).
e) Penalties. The legislation increases the daily maximum civil penalties for TSCA violations from $25,000 to $37,500, and increases the daily maximum criminal penalties from $25,000 to $50,000.
Baker Botts’ environmental practice is one of the largest and most diverse in the country. The firm’s environmental lawyers, many of whom previously held high-level government positions, integrate a broad array of skills to help our clients solve their environmental challenges.
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