TSCA reform reconciliation might be ready as soon as May 9.

Despite perennially familiar optimistic comments, Congress is heading into a weeklong recess with no deal on overhauling the Toxic Substances Control Act (TSCA). As we have previously discussed, both chambers have approved legislation to update the law, but differences between the two bills have yet to be reconciled. Nevertheless, lawmakers continue to claim that progress is being made. While a push to wrap up negotiations before the recess failed, legislators hope to reach an agreement as soon as the week of May 9, when Congress is back in session.

Rep. John Shimkus (R-IL), chair of the House Energy and Commerce Committee’s Environment and the Economy Subcommittee told Bloomberg BNA that legislators are still trying to reach a “middle ground” on state preemption. This month, environmentalists have raised new concerns with the legislation, with the Waterkeeper Alliance opposing to the so-called “Monsanto provision,” flagged in February by the New York Times, and the Natural Resources Defense Council criticizing the legislation’s high standard for the Environmental Protection Agency (EPA) to regulate chemicals in imports, including articles, through Significant New Use Rules (SNURs). Vermont’s Congressional delegation has also written to reconciliation leaders, arguing for the importance of TSCA reform from the perspective of a state currently grappling with reports of drinking and surface water contaminated with perfluorooctanoic acid (PFOA). Their letter [PDF] calls for preserving state authorities and supports letters previously submitted by EPA Administrator Gina McCarthy and state Attorneys General.

Although lawmakers from both parties have insisted that negotiations are not to be held to any timeline, the number of weeks left on the legislative calendar is dwindling rapidly.

EPA and others weigh in on TSCA reform, but no reconciliation in sight.

Although both chambers of Congress approved legislation in 2015 to modernize the Toxic Substances Control Act (TSCA), there has been little proof of progress towards reconciling the two bills, while stakeholders, including the United States Environmental Protection Agency (EPA), have been active in providing feedback and recommendations to legislators. However, Senator James Inhofe (R-OK), Chairman of the Senate Environment and Public Works Committee, recently told Bloomberg BNA that an agreement on merging the bills could happen before the next Congressional recess.

Overall, the EPA prefers the Senate version of legislation to update TSCA, according to a letter [PDF] sent earlier this year to Congressional leaders. EPA Administrator Gina McCarthy provided the Agency’s most comprehensive comments to date on the TSCA modernization bills passed by both houses of Congress in a letter dated January 20, 2016 but not made public until the beginning of March. The letter stops short of expressly recommending that the Senate bill be adopted as the framework for final legislation, but voices the EPA’s preference for various aspects of the Senate version while also approving certain provisions found in both bills. The EPA’s comments are based on the Administration’s previously discussed principles for TSCA reform, and were submitted to help negotiators reconcile the two bills, emphasizing that “[t]he lack of a workable safety standard, deadlines to review and act on existing chemicals, and a consistent source of funding are all fundamental flaws in TSCA that should be addressed.”

In particular, the EPA expressed support for the following aspects of the Senate bill:

  • Deadlines for chemical assessments and a requirement to repopulate the high-priority list until all chemicals on the TSCA Inventory have been evaluated;
  • Considerations EPA must assess in choosing a risk management measure, including costs and benefits of alternative ways to achieve the safety standard, based on reasonably available information;
  • Prioritizing chemicals for review based on manufacturer requests, subject to a cap on the number of manufacturer-initiated evaluations and funding from requestors;
  • Authorizing fee collection for the cost of reviewing confidential business information (CBI) claims, section 5 notices, prioritization decisions, safety assessments, and rulemakings;
  • Regulatory flexibility under a new section 6(d), providing “catch-all” regulatory authorities;
  • Affirmative safety determinations for new chemicals;
  • Strengthened civil and criminal enforcement authorities; and
  • Clarifying the types of state laws that are intended to be protected from federal preemption.

However, the EPA also wrote that it “strongly prefers the House bill” on the matter of implementation, because the Senate version’s deadlines and procedural requirements “may unnecessarily slow progress on more substantive issues, limit the EPA’s flexibility to allocate resources appropriately, and lead to burdensome litigation.” The letter also identifies some areas where both bills need improvement, or where the Senate version was not singled out as preferable, such as new use notification requirements for chemicals in articles.

The Hill reported that, after receiving the letter and incorporating suggestions from it, leaders of the House Energy and Commerce Committee Fred Upton (R-MI) and Frank Pallone Jr. (D-NJ) “sent an offer to the Senate …as the first formal step in negotiating toward a bill.” This offer addressed EPA’s main concerns by, for example, capping the number of industry-initiated risk evaluations, increasing funding for the program, and providing for safety determinations for new chemicals. The offer was reportedly made at the end of February but there have not been any public reports on whether the Senate responded or whether any other progress has been made since early March.

Plans to merge the competing bills might have been thrown off track earlier this month following reporting from the New York Times on a provision in the House legislation that “could help shield [Monsanto] from legal liability” related to its manufacture of polychlorinated biphenyls (PCBs). The article has drawn criticism of the House bill from some NGOs and even Presidential candidate Hillary Clinton.

Meanwhile, even more stakeholders have weighed in with their concerns and priorities. Environmental regulators from eight states, including California and New York, submitted a letter in early February focusing on the bills’ approaches to preemption issues. In late February, the American Alliance for Innovation, an umbrella group of dozens of trade associations, outlined its priorities for consideration in conference discussions.

Although Congress is perhaps closer than ever to passing a TSCA modernization bill, there has been little indication that legislators are making progress in getting legislation to the President’s desk. These most recent stakeholder comments may be just what Congress needs to speed up the process.

Congressional leaders at work on reconciling TSCA reform bills.

Quickly reconciling the recently passed House and Senate bills overhauling the Toxic Substances Control Act (TSCA) is reportedly a top priority for congressional leaders this year. Earlier this month, Bloomberg BNA reported that House Energy and Commerce Committee Chairman Fred Upton (R-MI) and Rep. John Shimkus (R-IL), chairman of the energy committee’s Environment and the Economy Subcommittee, would be meeting privately to set the subcommittee’s agenda, including how to reconcile the Frank R. Lautenberg Chemical Safety for the 21st Century Act (S. 697) and the TSCA Modernization Act (H.R. 2576). Senator James Inhofe (R-OK), chairman of the Senate Environment and Public Works Committee, also told reporters that he was meeting with Rep. Upton to discuss the same topic.

Asked when final legislation might come before Congress, Sen. Inhofe suggested as early as this month or next month. He also noted that priorities for reconciliation include “making sure the EPA does what they’re supposed to be doing in pre-classifying chemicals.” Rep. Upton told Bloomberg BNA that reconciling the two bills is “high on both of our agendas,” and Rep. Shimkus said he was “pretty optimistic.”

It remains unclear, however, if both chambers will hold a formal conference committee or find a compromise in private that would then be approved by the House and Senate.

The bills are supported by a broad range of industry stakeholders, including the 3M, American Apparel & Footwear Association, American Chemistry Council, BASF, Dow Chemical, DuPont, and the National Retail Federation.

However, state and territorial environmental regulators have taken a more critical position. Last week, the Environmental Council of States released an analysis of the two bills highlighting provisions and sections that should be added or retained during reconciliation. Although not an official position of the organization, ECOS said the analysis is meant to be “a guide to selected issues of interest” to state environmental agencies. The analysis focuses mainly on preemption issues, including timing, grandfathering, and waivers, as well as the requirement that EPA share Confidential Business Information (CBI) data with states, and largely favors the Senate bill. However, the analysis also strongly advocates eliminating several provisions from the Senate version, including those authorizing a “regulatory pause” on state action and industry requests for safety determinations.

Yesterday, Chemical Watch reported that the Society of Chemical Manufacturers and Affiliates (SOCMA) sent a letter to key members of Congress expressing its preference for certain features of the House bill. SOCMA, the trade group for specialty chemical manufacturers, cited the House version’s stronger protections for the confidentiality of chemical identity. The trade group argued that the Senate version would have the perverse effect of discouraging submitters of Premanufacture Notices (PMNs) from conducting health and safety studies, which would trigger the disclosure of chemical identity information. SOCMA also wrote in support of the House bill’s provisions on fees, which are linked to recovering costs for the TSCA Section 5 program and do not apply to businesses that are exempt from submitting data, whereas the Senate bill authorizes fees for exemption requests. In addition, the letter urged Congress “to resist calls to adopt an approach that would prevent a [PMN] submitter from commencing manufacture until EPA issued its determination, even if EPA missed its 90/180-day deadline.”

U.S. Senate passes TSCA reform bill.

Today, the U.S. Senate broke its months-long deadlock on chemical safety reform and approved by voice vote the “Frank R. Lautenberg Chemical Safety for the 21st Century Act” (S. 697). The bill, sponsored by Senators David Vitter (R-LA) and Tom Udall (D-NM), overhauls the decades-old Toxic Substances Control Act (TSCA) for the first time. We previously discussed aspects of S. 697 upon its March introduction and approval, a month later, by the Senate Environment and Public Works Committee.

After two years of negotiations, the legislation earned the support of 60 Senators of both parties as well as industry and many environmental groups. However, the bill was held up in October by Senators Richard Burr (R-NC) and Kelly Ayotte (R-NH), who were seeking to renew the Land and Water Conservation Fund. After that hold was lifted earlier this week, Sen. Barbara Boxer (D-CA), who has long criticized the proposal as too weak, placed another hold on the bill. Sen. Boxer reportedly lifted her hold after being promised that the legislation would be changed in reconciliation to more closely match the bill passed by the House (H.R. 2567) in June, which Sen. Boxer considers more protective.

The main issue legislators will face in reconciliation will likely be whether states will be allowed to impose tighter restrictions than federal standards.

TSCA reform becomes filibuster proof, but floor vote remains elusive.

Last week, the U.S. Senate came closer to passing bipartisan legislation to reform the Toxic Substances Control Act (TSCA) than ever before – but still failed to bring S. 697 to the floor. The bill, co-authored by Senators Tom Udall (D-NM) and David Vitter (R-LA), is still not scheduled for a floor vote, which will have to wait until after Congress returns from its Columbus Day recess.

On Friday, October 2, the “Frank R. Lautenberg Chemical Safety for the 21st Century Act” reached the filibuster-proof level of 60 cosponsors with the added support of Senators Ed Markey (D-MA) and Dick Durbin (D-IL). The new cosponsors came aboard as part of a deal promising changes to the bill, including increases to the annual funding cap for industry fees from $18 million to $25 million and measures to streamline the state preemption waiver process. At the same time, Senator Barbara Boxer (D-CA), who has been a vocal critic of the bill, reportedly agreed to allow S. 697 to advance. On Thursday, a diverse alliance of advocates – including the American Chemistry Council and Environmental Defense Fund – rallied outside the Capitol to support the legislation.

However, the news and optimism was quickly overshadowed by the announcement on Monday, October 5, from Senators Richard Burr (R-NC) and Kelly Ayotte (R-NH) that they would block consideration of the TSCA reform bill unless reauthorization of the Land and Water Conservation Fund (LWCF) was added as an amendment.

The LWCF proposal was met with resistance by Senators Udall and James Inhofe (R-OK), chair of the Environment and Public Works Committee, who are trying to keep out amendments that are not “germane.” In a letter to Senate Majority Leader Mitch McConnell (R-KY), Senate Democratic leaders pushed for separate floor time to address the reauthorization of LWCF, with the hope of clearing the way for TSCA reform.

Instead, the Senate adjourned today for a week-long recess without voting on the matter, meaning the Udall-Vitter bill could not reach the floor until October 19, at the earliest. Senators Udall and McConnell are said to be working on resolving the LWCF roadblock in order to secure the passage of S. 697, which is expected to pass easily once the procedural hurdles of scheduling a floor vote are surpassed.

Senate leaders urged to consider competing TSCA reform bills.

Since our last update, U.S. lawmakers and other stakeholders have kept busy with competing legislation to reform the Toxic Substance Control Act (TSCA), with the hope of bringing the issue to the Senate floor for debate before the August Congressional recess. The TSCA Modernization Act of 2015 (H.R. 2567) passed the House by a vote of 398-1 on June 23, while the Udall-Vitter bill (S. 697), which was approved by the Senate Environment and Public Works Committee in April, continues to await scheduling for a floor vote.

Last week, Democratic supporters of the bipartisan Udall-Vitter bill urged Senate leaders to bring the bill to a floor vote “as soon as possible.” In a letter addressed to Senate Majority Leader Mitch McConnell (R-KY) and Minority Leader Harry Reid (D-NV), thirteen senators lauded S. 697 as “stronger and more comprehensive” than the House bill. The lawmakers criticized the House bill for creating a “virtually unlimited pathway for chemicals favored for review by industry.” The Democrats also took issue with the House bill for failing to overhaul the new chemical review program, provide for an independent funding mechanism, limit animal testing, or mandate EPA to review Confidential Business Information (CBI) claims.

A vocal critic of S. 697, Sen. Barbara Boxer (D-CA) joined a group of environmental and public health organizations in lobbying for adoption of the more limited House bill, which she called “the best approach for meaningful TSCA reform.” Led by the Safer Chemicals, Healthy Families coalition, 57 advocacy groups sent a letter [PDF] advocating the House bill as “more appropriate to use as the vehicle for changes as the process moves forward.” The coalition stressed that if the Senate proceeds with S. 697, then the bill’s “primarily failings” – including provisions regarding state preemption and the “low-priority loophole” – must be addressed.

TSCA Modernization Act approved by House Energy and Commerce Committee, floor vote expected by end of June.

Today, the House Energy and Commerce Committee approved the TSCA Modernization Act (H.R. 2576), setting up the bill for a floor vote currently scheduled for June 23. The vote was 47-0 with one abstention, by Rep. Anna Eshoo (D-CA), who warned of the legislation’s insufficient protections for state chemical laws. Rep. John Shimkus (R-IL), the initial author of the proposal, also won adoption of a technical amendment [PDF] making minor changes to the bill’s language.

The preemption of state laws has been a major sticking point in this year’s proposals to reform the Toxic Substances Control Act (TSCA) in both the House and Senate. Notwithstanding changes to the TSCA Modernization Act designed to address those concerns, environmental and public health advocacy groups have not dropped their opposition to the bill. In addition, a dozen state Attorneys General representing California, Massachusetts, New York, and Maryland, among other states, sent a letter [PDF] last week to Energy and Commerce Committee leaders Fred Upton (R-MI) and Frank Pallone (D-NJ). In the letter, the Attorneys General expressed concern that the bill “scales back the states’ police powers and inhibits the traditional state-federal partnership that protects the public from toxic chemicals.” Following promises from Rep. Upton to negotiate new state preemption language before the floor vote, Rep. Eshoo agreed to withdraw her own proposed amendment [PDF] meant to clarify ambiguities on state authority. Rep. Pallone suggested that the state authority issues might be addressed later, although Rep. Shimkus suggested that the scope of the proposed changes may be too disruptive to win sufficient support for passage.

While the Environmental Working Group criticized the bill’s approval, saying the legislation “falls short,” industry groups responded favorably and continue to push for action in the Senate. Over 140 trade groups ranging from the Alliance of Automobile Manufacturers to the U.S. Chamber of Commerce, organized as the American Alliance for Innovation sent a letter [PDF] to Senate Majority Leader Mitch McConnell (R-KY) urging the swift passage of S. 697, the “Frank R. Lautenberg Chemical Safety for the 21st Century Act,” which they described as a “balanced compromise.” Yesterday, Bloomberg BNA reported that Sen. McConnell had not scheduled floor time for the bill yet, so it would not reach the floor until July or August.

TSCA reform: NYT calls for more high-priority chemical assessments, House bill formally introduced.

Even while Congress is in recess this week, the cause of reforming the Toxic Substances Control Act (TSCA) continues to progress. Notably, the New York Times Editorial Board is calling for stronger regulation of chemicals by requiring and empowering EPA to evaluate “at least 20 high-priority chemicals a year of its own choosing.” The editorial describes the current TSCA reform proposals in Congress as “a substantial improvement” while simultaneously decrying the bills’ failure to provide “speedy evaluations of the most worrisome chemicals among tens of thousands that have never been tested for safety.” The Times notes the “remarkable feat” of attracting 20 Republican and 20 Democratic co-sponsors to the Senate bill, but criticizes the legislation’s “slow pace of designating high-priority chemicals that require safety assessments.” The editorial also claims that under the House proposal, EPA would be tied up with conducting industry-initiated assessments instead of “chemicals the agency might regard as posing the highest risk.”

Meanwhile, Rep. John Shimkus (R-IL) formally introduced his bill, the TSCA Modernization Act of 2015 (H.R. 2576), on Tuesday. The legislation’s initial co-sponsors are Representatives Fred Upton (R-MI), Frank Pallone (D-NJ), and Paul Tonko (D-NY). The bill was unanimously approved by the House Subcommittee on Environment and the Economy earlier this month.

Rep. Shimkus’ TSCA reform bill receives unanimous, bipartisan approval in House Subcommittee.

The House Subcommittee on Environment and the Economy unanimously approved the Toxic Substances Control Act Modernization Act of 2015, a revised version of the bill first introduced by Subcommittee Chair Rep. John Shimkus (R-IL) last month to fix key flaws in the Toxic Substances Control Act (TSCA). At today’s markup, Rep. Shimkus said he was “more encouraged than ever” that the outdated law would finally be modernized to meet the public’s expectations and protect human health and the environment.

Yesterday, Rep. Shimkus was joined by new co-sponsors Rep. Paul Tonko (D-NY), Ranking Member of the Subcommittee; Rep. Fred Upton (R-MI), Chair of the Energy and Commerce Committee; and Rep. Frank Pallone (D-NJ), Ranking Member of the full Committee, in unveiling changes to the draft bill and calling for the legislation’s passage. The changes addressed some of the most criticized and controversial aspects of the original draft and TSCA reform, including timelines for chemical assessments and federal preemption of state laws.

Rep. Shimkus emphasized that the revised legislation’s basic approach remained the same as in his original draft: empowering EPA to review existing chemicals on the market and “make science-based decisions about whether they pose an unreasonable risk of injury to human health or the environment.” Under the bill, EPA would first assess the safety of a chemical based on hazard and exposure. Cost and other economic factors, including benefits, would not be considered until the second step, when EPA chooses how to regulate the assessed chemical, and a “reasonable transition period” would be required.

Changes from the original bill include:

  • Requires EPA to complete at least 10 chemical assessments per year and to issue risk management rules within 90 days completing an assessment;
  • Creates an accelerated path for assessing persistent, bioaccumulative, and toxic (PBT) substances;
  • Sets different timelines for completing assessments depending on whether they are initiated by EPA or requested by industry;
  • Explicitly preserves private causes of action and existing state laws not in conflict with TSCA, including California’s Proposition 65 and other chemical laws passed before August 1, 2015;
  • Limits the effectiveness of federal preemption of state chemical laws until after EPA makes a final assessment decision;
  • Ensures that user fees are spent only for specific purposes, rather than deposited in the Treasury’s General Fund;
  • Allows EPA to issue five-year “critical use” exemptions for chemicals if the agency’s regulatory requirements would not be cost-effective for a specific use and EPA determines that application of the requirement “would significantly disrupt the national economy, national security, or critical infrastructure.”

While subpanel members were all supportive of the new draft, some remaining issues were highlighted. Rep. Shimkus encouraged a bipartisan effort to amend TSCA section 8, which the current draft does not address.

Both industry and environmental groups have voiced support for the new version of the bill. The American Chemistry Council called it “balanced” and “pragmatic,” while the Safer Chemicals Healthy Families coalition said the changes brought the legislation “within striking distance of meaningful, if limited, reform.”

The bill now proceeds to the full Energy and Commerce Committee, which may schedule a markup as soon as next week.

Udall-Vitter TSCA reform bill gains momentum on the way to Senate floor; House markup expected soon.

The bipartisan Senate bill to modernize the Toxic Substances Control Act (TSCA) conforms to the Obama Administration’s principles for TSCA reform, said EPA Administrator Gina McCarthy, thus adding momentum to Congress’ protracted effort to overhaul the nation’s outdated chemical safety laws. While appearing last week before the Senate Subcommittee on Appropriations for Interior, Environment and Related Agencies, McCarthy lauded recent changes to S. 697, which was approved by the Senate Environment and Public Works Committee last week. Responding to questions from Senator Tom Udall (D-NM), who introduced the legislation along with Senator David Vitter (R-LA), McCarthy noted that EPA Assistant Administrator for Chemical Safety and Pollution Prevention Jim Jones had previously identified the proposal’s shortcomings, but “the most recent amendments really addressed those issues.” McCarthy also confirmed that the Udall-Vitter bill would provide EPA with the “tools it needs” to effectively regulate asbestos, saying the agency could designate asbestos as a high priority chemical subject to assessment and regulatory determinations.

After meeting with Senate Majority Leader Mitch McConnell (R-KY) to schedule floor time for the bill, Sen. Udall expects S. 697 to reach the Senate floor in June, where it might take three to six weeks to pass as other legislators, including Senator Barbara Boxer (D-CA), are likely to offer several amendments. Senators Vitter and Jim Inhofe (R-LA) are also expected to discuss the matter with the Majority Leader soon, although Sen. McConnell’s office says no decision on scheduling has been made yet.

On the House side, Sen. Udall said that the Subcommittee on Environment and the Economy would hold a markup on May 18, calling it “a very good sign” that both bodies were “moving in tandem.” The legislation in the House, introduced by Rep. John Shimkus (R-IL), provides for a more limited overhaul of TSCA and does not currently contain the controversial state preemption provisions found in the Senate bill. Rep. Shimkus told E&E Daily that he is a “big fan” of the compromise amendments made to S. 697 which won over support from Democrats.

Critics of S. 697, including the Environmental Working Group and Safer Chemicals Healthy Families coalition, are more sanguine about Rep. Shimkus’ bill because it does not present the “regulatory void” problem found in S. 697, where states would be prevented from banning chemicals while EPA is in the process of reviewing the substances for potential regulatory action. Other stakeholders are skeptical of the House legislation’s limited scope; E&E Daily reports that Environmental Defense Fund senior scientist Richard Denison said the bill fails to fix “even the core problems of TSCA.” American Chemistry Council spokesperson Ann Kolton told E&E Daily that the industry group “will be ready to support efforts in any way we can be helpful to find the right balance between the two bills.”

If both the House and Senate bills pass, legislators would face significant challenges in reconciling the two proposals in conference committee, particularly regarding the issue of state preemption.