The Chemical Safety Improvement Act (CSIA) will impact toxic tort cases and pre-empt state regulations and bans, such as California’s Proposition 65 and Green Chemistry Program, if it makes its way through Congress as currently written. Introduced as a bi-partisan bill in the Senate on May 22, 2013, the CSIA (S. 1009) is an attempt to modernize the 1976 Toxic Substances Control Act (TSCA) – balancing the precautionary principle of the non-governmental organizations (NGOs) with acceptable risk and innovation of industry while providing the US Environmental Protection Agency (EPA) with the tools and power necessary to act.
The bill re-defines how EPA determines chemical safety. These safety determinations will be admissible as evidence and will be determinative as to the safety of the substance in toxic tort cases. According to the CSIA, Safety Determination is a determination by EPA “as to whether a chemical substance meets the safety standard under the intended conditions of use;” and Safety Standard is a standard that “ensures that no unreasonable risk of harm to human health or the environment will result from exposure to a chemical substance.”
The EPA will be required to create a High Priority List of chemicals for safety determinations, which could become a premature blacklist adversely affecting the market before a scientific risk assessment is completed.
The bill is currently in the Senate Committee on Environment and Public Works, headed by Sen. Barbara Boxer of California. She has received input from various departments in her state, including the Department of Toxic Substance Control (DTSC), opposing the current wording. A Committee hearing is scheduled for the end of July and Boxer intends to introduce a markup shortly after. Meanwhile, in preparation, the House of Representatives have held hearings on the existing TSCA to understand its history and review its impact. We’ll continue to monitor the ongoing debate and potential implications of this bill as it progresses.