Toxic Substances Control Act: What petrochem professionals should know

The Toxic Substances Control Act (TSCA), first enacted in 1976, authorizes EPA to regulate the manufacture and commercial use of chemicals in the U.S.

For chemicals already in commerce that EPA finds present an "unreasonable risk of injury," the agency must develop regulations to remove or sufficiently manage those risks.

For new chemicals that have yet to be introduced into commerce, TSCA requires EPA to conduct a pre-manufacture review of the entire lifecycle of the proposed chemical to determine whether it might present an "unreasonable risk of injury." If an "unreasonable risk of injury" exists, the agency must issue regulations before those new chemicals can be manufactured and proceeded into commerce.

In both cases, the regulations can be anything from specifying labeling or protective measures to restrictions and all out bans. Since TSCA directly affects a company’s ability to make, import, sell and use chemicals, it has implications for entire American supply chains and interstate commerce.

The 2016 TSCA amendments created opportunity for the EPA to reinterpret how they ought to evaluate risk. For the EPA, it meant moving away from a risk-based approach toward a hazard-based approach. Here’s why that distinction matters, the hazard-based approach allows the EPA to focus on just the inherent properties of a chemical and whether the chemical could cause harm under any conditions, including hypothetical scenarios that do not resemble real-world conditions.

Problems with a hazard-based approach under TSCA

As TSCA is written today, EPA risk evaluations can ignore that petrochemical or refinery workers handle chemicals with PPE and with the benefit of the many OSHA, EPA and other safety regulations that already exist to prevent accidental releases and chemical exposure.

When EPA evaluates risk and regulates based on unlikely worst conceivable scenarios, it stymies manufacturing and innovation. A hazard-based approach leads to heavily restricting and even removing certain chemicals from the economy, instead of focusing on how these chemicals can be safely manufactured and used in the U.S.

Potential misuse of TSCA

There have also been concerns that EPA could use TSCA to restrict plastic production, advanced recycling and gasoline production in the U.S.

In recent years, EPA prioritized the review of petrochemical building blocks used in the production of plastics even though these chemicals are used in closed loop systems and have very little likelihood of exposure to humans or the environment.

The previous EPA also pursued new regulations under TSCA that would functionally limit the expansion of advanced recycling technologies, which have a critical role to play in advancing a more circular economy for plastics. Advanced recycling products are chemically equivalent to others already listed on the TSCA Inventory and do not require additional regulation.

The need to get TSCA right

If TSCA continues down the current path, it could lead to the elimination of chemicals and plastics that are essential to many lifesaving and life-enhancing goods, including personal protective gear, medical equipment, emergency response and military equipment, among others. It could also mean changing the performance of your favorite products, or worse, having them disappear altogether (think Gore-Tex apparel and Teflon coated pots and pans). Critical fuels like gasoline could also be threatened if TSCA leads to banning or restricting chemicals needed to produce high octane components for liquid fuels.

It is clear that additional TSCA reforms from Congress are needed and should be prioritized in the year ahead, so the law is, once again, anchored to reality and sciencebased risk analysis.

For more information, visit afpm.org.