President Barack Obama signed the bipartisan Frank R. Lautenberg Chemical Safety for the 21st Century Act into law 10 years ago in June 2016. This was the first major overhaul of the nation’s leading chemical management law, the Toxic Substances Control Act (TSCA), which gives EPA broad authority to monitor, test, report, evaluate, and regulate industrial and commercial chemicals. Importantly, TSCA regulates industrial and commercial chemicals already being manufactured and used as well as newly developed chemicals awaiting review before manufacture starts.
The 2016 amendments arose from years of growing consensus that the statutory framework needed strengthening. Business and industry stakeholders were keenly interested in a predictable, reliable, and credible federal framework for chemicals management. Nongovernmental organizations wanted greater transparency. Unions wanted assurance of worker safety. Animal rights groups wanted progress moving away from animal testing to advanced, non-animal test methods. And all stakeholders wanted assurances that chemical safety was being appropriately evaluated and addressed.
Notably, the 2016 legislative package expanded EPA’s authority to collect fees from chemical manufacturers and processors, and that authority expires at the end of September. Some of these fees might be thought of as classical “user fees” where the payer receives a direct benefit. Fees charged to conduct pre-market reviews of new chemicals before manufacturing begins is one example. But other fees, such as fees charged to support EPA-initiated risk evaluations, do not necessarily provide a direct benefit to the manufacturer and processor, but generally support implementation of the statute. The 2016 amendments allow EPA to collect a significant fraction of the costs of TSCA implementation—up to 25% of annual program costs or $25 million, whichever is lower. Without renewed fees authority, EPA will need to fund TSCA implementation entirely from the annual budgeting and congressional appropriations process.
With the September deadline quickly approaching, stakeholders are rightly asking whether EPA’s fee authority will be reauthorized or changed. All that said, there appears to be broad stakeholder consensus that EPA needs adequate funding to implement TSCA as well as support for fees reauthorization in some form.
More notably, assuming Congress does reauthorize fees, this opens the door to also consider substantive modifications to TSCA. Beginning in 2025, in anticipation of this timeline, the House and Senate held five oversight and legislative hearings addressing challenges with TSCA implementation and exploring options for fixes. In 2026, both the House Environment Subcommittee and the Senate Environment and Public Works Committee released discussion drafts with substantive changes and held associated hearings. And one bill proposing TSCA fixes has now been introduced, the Sound Science Act of 2026.
Business and industry stakeholders have a laundry list of suggested improvements to the statute, be it the new chemicals program or the management of existing ones. But given the importance of innovating and manufacturing new chemicals in the United States for global competitiveness and secure domestic supply chains, one consistent theme is the need for predictable, timely new chemicals reviews. There also appears to be emerging support for the legacy Sustainable Futures program, which provided valuable assistance to industry stakeholders in screening and assessing new chemicals. For existing chemicals, stakeholders have expressed support for improved interagency review, including improved review with OSHA on evaluations of worker exposures and risk management actions. There is also an opportunity to enhance peer review of risk evaluations by EPA’s Science Advisory Committee on Chemicals by ensuring in-person reviews.
A suite of additional improvements, largely from the vantage point of business and industry, have been laid out in the two discussion drafts and the Sound Science Act. One particularly elegant suggestion, for example, would instruct EPA to treat equivalent chemicals the same way so that the same chemical developed with different source material or a different process would be treated as already on the TSCA Inventory and would not need to go through the new chemicals process. Other proposed improvements seek to modernize testing, increase transparency, support U.S. competitiveness, and foster interagency collaboration.
Because any substantive changes to TSCA will take bipartisan support, the question for 2026 is whether any, or which, of the various ideas and solutions for improvements can get over the line. Presumably, there will be sufficient bipartisan support for fee reauthorization—indeed, several Senate Democrats have indicated they support this approach. Meanwhile, time is fleeting for any substantive changes. While the business and industry wish list is well-developed, some environmental groups have taken the opposite position—that implementation of the 2016 amendments are still in their early stages, and that the courts are still in the early stages of weighing in on the meaning of the 2016 changes to the statute.
It is likely that fees will be reauthorized, if not by the end of the fiscal year, fairly soon to avoid program disruption. Meanwhile, discussions should continue regarding substantive improvements. In the end, this is an opportunity to demonstrate not just bipartisan support, but also an opportunity for industry, business, and environmental groups to come together to find practical amendments to TSCA.
On June 10, ELI, Bergeson & Campbell, P.C., and the George Washington University Milken Institute School of Public Health held a day-long conference, TSCA-10 Years Later, where expert panelists offered insight on TSCA, its history, the 2016 amendments, and the latest developments. Visit https://www.eli.org/events/tsca-reform-10-years-later for conference materials.
Karyn Schmidt, a principal in Squire Patton Boggs’ Public Policy Practice, has more than 30 years of experience working on chemicals management, environment, sustainability, and other issues, as a lawyer and trade association policy representative.
DISCLAIMER: The information contained in this article is for informational purposes only and is not legal advice or a substitute for obtaining legal advice from an attorney. Views expressed are those of the author and are not to be attributed to Marshall, Gerstein & Borun LLP or any of its former, present, or future clients.
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