How Many Chemicals Do You Have to Monitor?

One of the benefits of the recent reforms to the United States’ Toxic Substances Control Act (TSCA) was supposed to be the preemption of state programs, meaning that states would not be allowed to pile chemicals on top of the ones regulated on the federal level. Well, that happened—or did it? EHS Daily Advisor recently examined the convoluted preemption provisions of the Frank R. Lautenberg Chemical Safety for the 21st Century Act and tried to answer the question of exactly how many chemicals you must monitor. Many states, most famously California, have additional chemicals beyond than those in federal TSCA inventory that must be monitored for safety or that have been entirely prohibited for use or sale in that state. And sometimes, states regulate the same chemical in different ways. For instance, one state may flat-out ban a chemical, while another may “merely” require labelling on any product that contains that chemical. If you want to do business in that state in any way, you must be aware of the requirements for each applicable chemical in each applicable state. TSCA reforms were meant, in part, to remedy this regulatory nightmare. But did it? You be the judge. Preemption Reforms Under TSCA reforms, you may get some relief from some state chemical regulations. The five provisions related to state preemption are: Existing state requirements (pre-April 22, 2016) for specific chemicals are grandfathered (no relief there). Requirements under existing state laws (pre-August 31, 2003) remain in effect (some relief there, as some states were late to the party). State actions are preempted when the U.S. Environmental Protection Agency (EPA) finds a chemical safe or takes action on a chemical (relief only if the EPA acts on a chemical—if the EPA has no plans for a particular chemical that a state has eyes on, the state can regulate as it sees fit). Preemption only occurs if the scope if the EPA risk evaluation covers the same uses and risks as the state action (potential relief there depending on the chemical and the state). State actions are paused during the EPA risk evaluation, but states may obtain a pause “waiver.” The EPA has published an aggressive implementation plan for TSCA reforms with most actions kicking in by June 2018. However, it seems that state regulations pertaining to specific chemicals will be on your plate for a long time to come.

EHS Daily Advisor, 30 September 2016 ; ;