With TSCA Chemical Reform Likely to be Pushed Off Until Next Year - What Happens Now?

TSCA reform is dead.  Long live TSCA reform.

Okay, maybe too melodramatic.  But it would seem that the chances of passing a TSCA bill anytime in this session of Congress are pretty much done.  So with that in mind, what's next?  The answer of course is nobody really knows, and we aren't likely to know until after we see the outcome of the elections in November.

But we can make some guesses.  To begin with, we can assume that some sort of bill will be reintroduced in the next Congress, probably mid to late next year (2012 is a presidential election year).

First off, it is highly likely that the final reintroduced bills will shift toward a less data intensive system.  By that I mean that there will not likely be a requirement for all existing chemicals to have a complete data set produced and submitted to EPA in the fashion of REACH in Europe.  Even with the tiered approach (i.e., chemicals of highest tonnages are required to register first, smaller tonnages later), the REACH system has been a huge burden on industry.  Massive numbers of man-hours, costs, and coordination among sometimes hundreds of competitors to produce data dossiers have been needed, plus several years of activity, to get to a point where companies are struggling just to pass the initial completeness checks.  And then only 5% of those dossiers are required to be reviewed by the chemicals agency.  That's a lot of work to fill a lot of file cabinets.  But does it make us safer?  Not in the short run at least because it will take years of review even for those 5% to see if there are any risks.

Secondly, look for lots of action in the states. There are two reasons why industry has been publicly in favor of TSCA reform.  The first is simply public relations.  But the second is because they understand that TSCA reform is needed to avoid the patchwork of 50 sets of state regulations.  In the past industry had to worry about only a few states "going proactive," (e.g., California), but now there are many states who have been actively trying to ban specific chemicals, put restrictions on the use of chemicals like phthalates in baby bottles, and banning plastic bags.  And that is no accident.  Advocacy groups have actively worked with states to develop state-level regulations in an effort to push the federal-level process along.

Thirdly, look for Democrats (assuming they maintain control of both houses of Congress) to figure out how TSCA reform will help create jobs.  With the country still in the throes of a recession, and with predictions that it might be a while before we get the unemployment rate down, jobs are on everyone's mind.  The code word "jobs" was dropped by representatives of both parties in the House hearing held at the end of last month.  And industry representatives have been quoted saying that the new law cannot inhibit innovation or cost the industry jobs.  So if lawmakers want industry input they have to include the "jobs" code words in their language as they move forward.

Finally, this is an opportunity.  While no one could credibly argue that the process of TSCA reform is moving too fast (it took years of promises before the bills were introduced), the time between now and the reintroduction can be used wisely by all stakeholders to ensure the best combination of protection of human health and the environment with a workable plan that encourages job creation, green chemistry, and innovation.  Now is the time for everyone to put in a good faith effort.  I'm just not sure everyone is ready to do that.