Trial Magazine

In 1976, Congress passed the Toxic Substances Control Act (TSCA), which is the primary federal law regulating chemical substances in the United States.¹ Under TSCA, the EPA has authority to require testing, recordkeeping, and reporting to the agency from manufacturers, importers, processors, and distributors of chemical substances.² The law allowed EPA to ban, limit, or otherwise restrict chemicals that pose an unreasonable risk to public health and the environment.³ It does not cover substances such as food, drugs, cosmetics, or pesticides.

However, the 1976 TSCA had serious shortcomings, especially in terms of protecting people from harmful or deadly chemicals in homes, workplaces, and public spaces. Approximately 60,000 chemicals were grandfathered in under the law—meaning their safety was never tested—and for new chemicals, the agency relied on existing, limited toxicity data from manufacturers.⁴ The agency had 90 days to take a position on a chemical; if it didn’t, the chemical could enter the market without restriction. Chemicals that posed a risk could be regulated, but only in the “least burdensome” way—a standard that later proved to be the undoing of the 1976 TSCA.⁵

The EPA maintains an inventory of more than 80,000 chemical substances, but it has acted to limit only a handful of chemicals, such as polychlorinated biphenyls and hexavalent chromium.⁶

States and the civil justice system stepped into this void to protect people who were injured or killed by toxic substances and to hold chemical companies accountable. But TSCA reforms still were needed to ensure any meaningful regulation of toxic chemicals at the federal level. For years, Congress worked to reform the law to regulate chemicals that were completely unregulated for nearly four decades. On June 22, 2016, President Obama signed into law the Frank R. Lautenberg Chemical Safety for the 21st Century Act.⁷

This bipartisan compromise marked a significant improvement over the existing federal chemical regulatory framework, and specifically preserved states’ ability to protect their citizens from toxic chemicals by grandfathering existing state laws.

More important, the law did not preempt state tort remedies, and it specifically ensures that Americans can hold chemical companies accountable when their dangerous products cause harm to human health or the environment.

The new law requires the EPA to, among other things: 

• evaluate existing and new chemicals under specific, enforceable deadlines and prioritize which chemicals should be reviewed first
• develop risk-based safety standards based on the risk to human health and the environment 
• create a risk-based assessment process that classifies existing chemicals as either low or high priority for review.⁸

The act also expands testing authority and includes a faster process for evaluating “persistent, bioaccumulative, and toxic” chemicals, which are considered to pose a high risk to people. For new chemicals or significant new uses of an existing chemical, the agency must make affirmative safety findings before they can enter the market.

Within 180 days of enactment, the new law required the EPA to begin reviewing 10 high-priority chemicals and 20 more within three and a half years. Last June, the agency issued two final rules, one addressing prioritization of chemicals for risk evaluation and the second on procedures for risk evaluation.⁹

Under the new administration, however, the EPA is delaying action on three high-risk chemicals: methylene chloride and N-methylpyrrolidone, ingredients in paint strippers, and trichloroethylene, commonly used in dry cleaning.¹⁰ Significant concerns also have been raised about the ways in which the EPA is interpreting its statutory mandate under the reformed TSCA, and numerous lawsuits already have been filed challenging those interpretations, missed statutory deadlines, and other agency actions or inaction.  Ultimately, time will tell how closely the EPA adheres to the letter of the new law, but all the necessary tools exist to ensure meaningful chemical regulation at the state and federal levels, while preserving an active role for the civil justice system when those regulations fail.

To contact AAJ Public Affairs, email advocacy@justice.org.

1. 15 U.S.C. §2601 et seq. (1976).
2. Id.
3. 15 U.S.C. §2605(e).
4. Marcus Aguilar, U.S. Envt’l Prot. Agency, Toxic Substances Control Act (May 4, 2017), https://tinyurl.com/y9sr8u2f; Cory Gerlach, New Toxic Substances Control Act: An End to the Wild West for Chemical Safety?, Harvard Univ. Sci. in the News (Oct. 25, 2016), https://tinyurl.com/yc27cjgj.
5. Corrosion Proof Fittings v. Envt’l Prot. Agency, 947 F.2d 1201 (5th Cir. 1991).
6. Gerlach, supra note 4.
7. Pub. L. 114-182.
8. U.S. Envt’l Prot. Agency, Highlights of Key Provisions in the Frank R. Lautenberg Chemical Safety for the 21st Century Act, https://tinyurl.com/y7pb4azc.
9. 82 Fed. Reg. 33753; 82 Fed. Reg. 33726.
10. Sheila Kaplan, EPA Delays Bans on Uses of Hazardous Chemicals, N.Y. Times (Dec. 19, 2017), www.nytimes.com/2017/12/19/health/epa-toxic-chemicals.html