New legislation allows the Environmental Protection Agency more authority in regulating toxic chemicals. However, it also may take away the rights of certain individuals to sue privately.
On June 22, 2016, President Obama signed the Frank R. Lautenberg Chemical Safety for the 21st Century Act into law. This Act amends the Toxic Substance Control Act (TSCA) to allow additional regulation of harmful chemicals, which has not been addressed in over 40 years since the TSCA was initially passed. The EPA predicts that there are tens of thousands of chemicals used in products that have never been tested for safety because the TSCA’s strict regulations did not allow them to.
Numerous harmful substances are routinely included in consumer products. Individuals may also be exposed to harmful substances in the environment. People injured by these harmful substances may recover money damages. For example, benzene, a known carcinogen, is present in gasoline, paints, in solvents, and near refineries.
Ironically, the TSCA reform might have the effect of decreasing your ability to sue. Under what is known as the preemption doctrine, if a federal agency approves something, it may be impossible to have a state court jury decide that it is dangerous. If the EPA regulates a certain chemical, but does not go far enough, the result may be that an injured person will be unable to sue.
Prior to the new Act, the EPA did not have authority to ban certain harmful substances. For example, in 1989, the EPA issued a ban on asbestos products due to the studies indicating it as a harmful carcinogen. The ban was later overturned by the Fifth Circuit Court of Appeals for not meeting all of the EPA’s requirements to ban. Since the establishment of the TSCA only five chemicals have been successfully banned of the known 80,000 chemicals. As a result, many harmful chemicals remained unregulated.
The new law eases restrictions that the EPA previously encountered when handling chemical investigations. The more efficient process will allow the EPA to review substantially more chemicals at faster speeds. The amendments to the TSCA require the EPA to use a rankings system, with high to low prioritization on chemicals they are assessing. This will ensure the most potentially dangerous chemicals are evaluated first. The new law also provides for updated standards by which the chemicals are evaluated.
The updates to the TSCA provide the EPA the ability to prohibit or restrict the distribution, use, and manufacture of any chemical that is not likely to meet the new safety standards. In addition, the new law calls for greater transparency by both the EPA on its methods and conclusions from evaluations as well as corporations’ transparency of its uses of the chemicals.
Many corporations are supportive of this new law. While publicly, manufacturers claim they do so because the only want product on the market to be safe, the law could insulate them from private tort liability. However, new EPA restrictions on certain chemicals are likely to force manufacturers to be more innovative to ensure safer products.
The TSCA also increases funding to the EPA in order for it to fulfill its new responsibilities. The EPA will collect $25 million dollars from chemical manufacturers and processors in addition to federal funding for this long-term project.
Until these harmful or toxic materials are completely removed from products, you are still at risk. If you have been affected by a toxic substance, you may have a claim. Contact an attorney to determine your options.