Opinion: Is it time to amend the Toxic Substances Control Act . . . again?

We are fast approaching the ninth anniversary of the enactment of the 2016 Lautenberg amendments to the Toxic Substances Control Act, or TSCA, the federal law that governs chemicals in commerce. And with each passing year, we have further confirmation from frustrated industry stakeholders that TSCA as amended is broken. The 2016 revisions were spearheaded by the chemical industry and received overwhelming bipartisan support. Numerous provisions were overhauled, including section 6 on existing chemicals: it now mandates that the US Environmental Protection Agency prioritize and evaluate chemicals in commerce anticipated to present risks to human health or the environment, and if necessary, promulgate regulations to eliminate any unreasonable risk. Amending TSCA was no easy feat. It took years of steadfast negotiation to cross the finish line. After all, TSCA had not been substantively amended since its original passage in 1976. Yet, after nearly 9 years, it is abundantly clear that TSCA isn’t working. Why? One answer is that some amendments were drafted in a manner that left too much room for interpretation. And key terms, such as “unreasonable risk,” were left undefined. The result has been implementation whiplash with each change in administration. Take for example the following (truncated) sentence, added in 2016: “The Administrator shall conduct risk evaluations [. . .] to determine whether a chemical substance presents unreasonable risk [. . .] under the conditions of use.” During the first Donald J. Trump administration, this provision was interpreted as requiring the EPA to determine whether each condition of