Encyclopedia of Puget Sound

New law will increase testing of chemicals

New federal legislation, approved overwhelmingly by the U.S. Congress in December 2015 and signed into law by President Obama in June 2016, is designed to make sure that people and the environment are not harmed by new and old chemicals on the market.

Industrial plant. Photo: Gray World (CC BY 2.0) https://www.flickr.com/photos/greyworld/6159264209
Industrial plant. Photo: Gray World (CC BY 2.0) https://www.flickr.com/photos/greyworld/6159264209

The Frank R. Lautenberg Chemical Safety for the 21st Century Act, a bipartisan overhaul of the Toxic Substances Control Act, requires all new chemicals to undergo testing and formal approval by the U.S. Environmental Protection Agency before they can be used. Chemicals already on the market will be reviewed over time, with an initial focus on those posing the greatest hazard.

Representatives of the chemical industry supported the bill, because it limits actions that states can take, thus giving the industry more certainty about which chemicals will be banned. Meanwhile, many environmental groups viewed the bill as a major step in controlling harmful chemicals, those well known and those yet to be formulated.

Under the law, new chemicals and those proposed for a “significant new use” must be submitted to the EPA, along with information about chemical characteristics and effects of exposure. The EPA can request more information, if needed, before deciding whether the chemical presents an unreasonable risk of harm. If approved, the agency may impose restrictions on its use or other measures to reduce risk.

All chemicals already on the market must be identified as low or high priority for risk evaluation, including factors such as level of toxicity, types of uses and risks of exposure to people and the environment. Special consideration can be given to exposures among vulnerable groups, such as pregnant women, children and the elderly.

High-priority chemicals will undergo full risk evaluations. After review, chemicals that fail to meet the law’s safety standards become subject to special labeling, use restrictions, phase-outs or immediate bans. Cost and other business factors are not included in the risk evaluation, but they can be considered in the final regulatory action.

By Dec. 22, the EPA must have the first 10 risk evaluations underway, and within 3.5 years another 10 chemicals must be under review. When unreasonable risks are identified, the agency must take action within two years, which can be extended to four years if more time is needed.

State bans already imposed may continue, and states may ban chemicals not addressed by the EPA. But the states cannot take action on chemicals found safe by the EPA or when the EPA takes specific actions to reduce risks. If the EPA misses a deadline for taking action on a chemical, then one or more states may intervene. States may ask the EPA for an exemption, which would allow state action even while EPA action is under review.

While industry groups supported the law for its national approach to dealing with chemicals, they also stressed that the review process must be thorough and scientific, and it should reject studies that don’t meet the highest standards of research, according to congressional testimony by Michael Walls of the American Chemistry Council.

How information about a chemical is released to the public is critical, Walls said. “The final characterization of hazards and risks should provide a complete picture of what is known and what has been inferred and should present results based on alternative plausible assumptions.”

The law has its pros and cons, said Ivy Sager-Rosenthal of Toxic-Free Future, an environmental group formerly called Washington Toxics Coalition. While the law gives the EPA authority to address harmful chemicals on the market, actual progress could be determined by EPA’s budget and a willingness to act.

Limiting state actions could slow the process of dealing with toxic exposures, she said. For existing chemicals, the EPA can take four years for review and additional time for rule-making. Meanwhile, the states’ hands are tied.

“Our state has been a leader in this effort,” she said. “(The law) really could delay action on some chemicals for a long time.”

It also isn’t clear what levels of consumer safety will be required under the law, she said.

“I think overall the new federal law has more teeth than in the past,” Sager-Rosenthal said. “But, unfortunately, it is not going to give American families assurance that toxic chemicals are out of products that people use. We can’t stop being concerned about toxic chemicals.”

About the Author: 
Christopher Dunagan is a senior writer at the Puget Sound Institute.