May 20, 2019

May 20, 2019

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Toxic Substances Control Act Revised for 21st Century

On June 22, 2016, President Obama signed the Lautenberg Chemical Safety Act into law.  The Act is the first significant change to the 1976 Toxic Substances Control Act in 40 years and amends the Environmental Protection Agency’s (EPA) methods for reviewing chemical substances before they are marketed and allowed to be used in consumer products.

The Act has several new key features:

  • EPA’s safety reviews for all chemicals currently in commerce will depend solely on risks to human health and the environment (including those “grandfathered” under the current federal law).  EPA’s safety reviews will also be performed for new chemicals that are proposed for entry into the market prior to manufacture.  Additionally, “high priority” chemicals will be reviewed first.

  • When evaluating chemical substances, EPA must consider the “best” science to determine impacts to human health and the environment.

  • New restrictions on industries that conduct animal testing and a requirement for EPA to track “scientifically reliable alternatives” to animal testing.

  • A health-based safety standard replaces the TSCA cost-benefit safety standard (also known as the “least burdensome” requirement).

  • Express language that the Act does not preclude private rights of action for personal injury, wrongful death, property damage, or other injury based on negligence, strict liability, products liability, failure to warn, or any other legal theory of liability.  Nor can EPA’s safety reviews be used as “dispositive” evidence in such a case.

  • Authorization for EPA to promulgate rules to manage the risk in cases where “unreasonable risk” is determined for a chemical substance.

  • A mechanism to ensure industry fees paid to the EPA for its safety reviews are used for the specific purpose for which they were given.

  • A preemption of state law until EPA makes a final decision on a chemical but grandfathering certain existing state law decisions and allowing states certain “emergency” decisions.

  • New limitations on and continued protection of confidential business information.

  • 15 deadlines for EPA action, including a three-year limit for the completion of chemical risk assessments and a 90-day window after risk evaluations are completed for the EPA to promulgate risk management rules.  Once EPA’s actions are completed, it is expected that EPA’s review process will be more efficient and transparent under the Act.

  • The new imposition of strict liability on chemical importers.

  • A new requirement to share confidential business information with states, units of local government, health providers or emergency responders dealing with potential injury involving or exposure to a chemical.

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About this Author

Jane E Montgomery, Schiff Hardin Law firm
Partner

Jane E. Montgomery concentrates her practice in a variety of matters at the local, state and federal levels. Ms. Montgomery regularly: Counsels many companies with day-to-day compliance issues, including air permitting, NSPS, MACT, and solid and hazardous waste issues. In her work, she often encounters difficult elemental mercury, manufactured gas plant, and PCB issues, and she recently has focused on Reform New Source Review (NSR) compliance for utilities. Counsels clients with respect to climate change issues. Such work has included work on carbon sequestration issues, greenhouse gas...

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Patrick F. Veasy, Associate Attorney, Schiff Hardin, Law firm
Associate

Patrick F. Veasy is taking advantage of the opportunity for new associates to work in several practice groups for broadened experience and expanded legal counseling perspectives.

Previous Experience

Mr. Veasy served as a judicial extern for the Honorable Ming W. Chin at the Supreme Court of California. He also gained valuable experience as a summer associate at Schiff Hardin in 2013. Mr. Veasy also previously served as a judicial extern for the Honorable Phyllis J. Hamilton at the U.S. District Court for the Northern District of California.

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Amy Antoniolli, environmental attorney, Schiff Hardin, permit appeals legal counsel, environment regulations lawyer, Illinois Pollution Control law
Staff Attorney

Amy Antoniolli concentrates her practice on environmental matters, advising clients on compliance with relevant laws and regulations and representing them in permit appeals, requests for relief from regulations and in rulemakings.

Amy’s prior experience as Assistant Attorney for the Illinois Pollution Control Board and as Assistant Counsel to the Illinois House of Representatives informs her work at Schiff Hardin and regularly benefits her clients.

Having advised the Board Members of the Illinois Pollution Control Board...

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