House panel considers Rep. Shimkus’ TSCA reform proposal.

On Tuesday, members of the House Energy and Commerce Subcommittee reviewed the draft proposal introduced last week by Rep. John Shimkus (R-IL) to modernize the Toxic Substances Control Act (TSCA). The “TSCA Modernization Act of 2015,” takes a narrower approach to TSCA reform compared to previous proposals, and was crafted with input from members of both parties. The current bill is a “discussion draft,” and Rep. Shimkus announced that he planned to incorporate changes to it before holding a markup on May 14.

Lawmakers and witnesses alike agreed that significant progress had been made in working toward a much-needed update of the nation’s primary chemicals law, which was signed into law in 1976. The Subcommittee heard testimony from officials representing the Alliance of Automobile Manufacturers, American Chemistry Council, and Society of Chemical Manufacturers and Affiliates, and Safer Chemicals, Healthy Families, as well as Jim Jones, the EPA Assistant Administrator for Chemical Safety and Pollution Prevention.

Industry representatives were generally supportive of the bill, particularly its provisions on testing existing chemicals and improving risk management, and concluded that the sections on state preemption and co-enforcement were appropriate. However, because the proposal does not provide a detailed prioritization plan for screening chemicals or specific timelines for risk assessment, the industry witnesses emphasized the need for Congress and the White House to provide EPA with sufficient resources to accelerate the review of existing chemicals and that the bill should be amended to direct TSCA fee revenue to EPA for implementing TSCA, rather than to the general treasury. The chemical trade group representatives also called for various changes to the proposed TSCA Inventory “reset,” so, e.g., manufacturers would not have to submit new Pre-Manufacture Notices for substances that EPA removes from the Inventory and processors would be subject to reporting requirements on use and exposure data.

Assistant Administrator Jones acknowledged that the proposal complies with the Obama Administration’s principles for TSCA reform, but called for clarity on various issues, including the prioritization process and how EPA should consider cost when evaluating risk. Jones emphasized that funding was a major constraint on how many chemicals EPA can review each year, and even assessments requested and paid for by industry could not be completed within the “unrealistically optimistic” six-month timeframe proposed in the discussion draft. Jones expressed concern that by letting industry request unlimited assessments without a prioritization scheme or required minimum for agency-initiated assessments, the review process could be exploited to “delay evaluations for some of the most dangerous chemicals indefinitely.”

Andy Igrejas, director of the Safer Chemicals, Healthy Families coalition of environmental, public health, labor and other organizations, testified on several positive elements he saw in the draft as well as several areas of concern. According to Igrejas, the bill would not “fix the fundamental barrier in current law to EPA imposing risk management on an unsafe chemical,” because EPA would be required to conduct a cost-effectiveness analysis as to whether a chemical’s risk should be mitigated. Igrejas also testified that the legislation should include a “grandfather clause” for state laws that have “become settled matters of public health policy.” Despite these and other problems, Igrejas said the bill could be fixed with small changes to the language.

Rep. Shimkus introduces narrower TSCA reform “discussion draft” in House.

The House of Representatives has now joined the Senate in moving toward reforming the Toxic Substances Control Act (TSCA). Yesterday, the House Energy and Commerce Subcommittee on Environment and the Economy announced that it will hold a legislative hearing on a “discussion draft” of the “TSCA Modernization Act” on April 14. The newly unveiled proposal [PDF] comes from Subcommittee Chair Rep. John Shimkus (R-IL), who led last year’s unsuccessful TSCA reform effort in the House. As expected, the draft is significantly narrower in scope than either of the current Senate proposals or Rep. Shimkus’ “Chemicals in Commerce Act,” introduced one year ago.

The draft bill establishes a new system for EPA to evaluate and manage risks for chemicals already on the market, including testing authority, and excises the requirement that EPA take the “least burdensome” regulatory approach to managing risks from harmful chemicals. Instead, when developing a rule to manage a chemical’s risks, the agency would have to consider factors including benefits of the chemical substance, economic consequences, and cost-effectiveness. Under the new system, manufacturers would be able to designate chemicals for risk evaluation, in which case, manufacturers would pay the administrative costs EPA incurs in conducting the evaluation. In addition, the proposal sets timelines for completion of risk evaluations: three years for EPA-selected substances, and 180 days for evaluations initiated by manufacturers. However, there are no provisions for capping the number of evaluations industry can fast-track, or for requiring a minimum number of evaluations to be completed.

The bill would adopt a new safety standard requiring EPA to determine if there is “a reasonable basis for concluding that the combination of hazard from and exposure to the chemical substance under the intended conditions of use has the potential to be high enough to present an unreasonable risk to health or the environment.”

Notably, Rep. Shimkus’ proposal provides a more limited preemption of state laws, overriding them only once EPA has made a final decision on a chemical’s safety. However, there is no grandfather clause exempting California’s Proposition 65, which is included in the legislation from Senators Tom Udall (D-NM) and David Vitter (R-LA).

Rep. Shimkus’ bill authorizes certain state, local, and tribal government officials and healthcare professionals to access Confidential Business Information (CBI), on request, when responding to an environmental release or, in the case of healthcare professionals, to assist in the diagnosis or treatment of patients. It also proposes a system to renew CBI claims after ten years.

In the Subcommittee’s press release, Rep. Frank Pallone, Jr., (D-NJ), Ranking Member of the full committee, called the draft “a good starting point.”

Next week’s hearing will include testimony from EPA Assistant Administrator Jim Jones, of the Office of Chemical Safety and Pollution Prevention. Other panelists have yet to be named.

Stakeholders respond to competing TSCA reform proposals.

Since the Senate Environment and Public Works (EPW) Committee’s legislative hearing last week on modernizing the outdated Toxic Substances Control Act (TSCA), critiques, endorsements, and other reactions have continued to roll in from all corners of the TSCA reform universe. Yesterday, Chemical Watch reported that the Alliance of Automotive Manufacturers and the Consumer Electronics Association came out in support of S. 697, the “Frank R. Lautenberg Chemical Safety for the 21st Century Act” introduced by Senators Tom Udall (D-NM) and David Vitter (R-LA). Both industry groups lauded the bipartisan bill for creating a single regulatory scheme that would be consistent across the U.S., which they prefer to the approach put forward in the competing proposal from Senators Barbara Boxer (D-CA) and Edward Markey (D-MA). According to Chemical Watch, the electronics companies Dell and Hewlett-Packard are taking a wait-and-see approach to the proposed bills, while the Retail Industry Leaders Association, whose members include Walmart, Target, and Nike, is still reviewing the legislation with its member companies.

Companies for Safer Chemicals, a coalition coordinated by the American Sustainable Business Council and representing manufacturers including Seventh Generation and Naturepedic, expressed early support for the Boxer-Markey bill, calling S. 697 “insufficient” and faulting its slower timeline for chemical safety assessments. The coalition has also submitted a letter to the EPW Committee suggesting certain improvements to be made to the Udall-Vitter bill, including delayed preemption of state action, loosening Confidential Business Information (CBI) protections to increase transparency through supply chains, a “more robust review schedule,” fully funding TSCA through an uncapped fee system, and making it easier for EPA to restrict articles containing hazardous chemicals.

Earlier this week, Chemical Watch highlighted letters from the California Environmental Protection Agency (CalEPA) [PDF] and several state Attorneys General [PDF], both opposing the Udall-Vitter bill. The state officials object to the legislation’s elimination of co-enforcement and overbroad preemption provision, which they say would prevent state action to regulate dangerous chemicals. CalEPA Secretary Matthew Rodriguez further argued that S. 697 would impede the full implementation of California’s landmark green chemistry law, the Safer Consumer Products program.

Lawmakers and stakeholders are discussing the possibilities for negotiating amendments to the Udall-Vitter bill that could attract additional support from Democrats and the Obama administration.

A related debate has been playing out among legal experts over the Udall-Vitter bill’s safety standard of “unreasonable risk.” A group of former senior EPA legal officials who served in the last four administrations sent a letter to the Senate EPW Committee backing the bill, saying that the “unreasonable risk” standard “as included in S. 697 is not to be interpreted as it has under the existing TSCA.” That letter was in response to a March 16 letter [PDF] from public interest attorneys and environmental law professors, which called the safety standard in S. 697 “deeply problematic.”

Senate committee holds hearing on Udall-Vitter TSCA reform bill.

Today, the Senate Environment and Public Works Committee held a legislative hearing on the “Frank R. Lautenberg Chemical Safety for the 21st Century Act,” the proposal to modernize the Toxic Substances Control Act (TSCA) introduced last week by Senators David Vitter (R-LA) and Tom Udall (D-NM).

Lawmakers heard from Bonnie Englebardt Lautenberg, widow of the late Senator Frank Lautenberg (D-NJ), who said that her husband wanted chemical safety reform to be his “final, enduring legacy,” and warned that opposing the bill would “let the perfect be the enemy of the good.” Other lawmakers and witnesses also emphasized compromise and pragmatism in supporting the legislation. Sen. Vitter called the proposal “the only realistic shot we have at reforming a very broken and dysfunctional system.” Environmental Defense Fund Senior Scientist Richard Denison’s testimony [PDF] characterized Udall-Vitter as “a solid compromise that fixes the biggest problems with our current law” and “the best opportunity ever to reform” TSCA. Sen. Udall called for compromise, approvingly cited today’s New York Times editorial making recommendations for the bill, and suggested that it might be possible to compromise on changes such as co-enforcement, the timing of state preemption, and the minimum number of chemicals to be reviewed.

EPA Assistant Administrator of the Office of Chemical Safety and Pollution Prevention Jim Jones testified that the agency has no position on the Udall-Vitter bill, but that the legislation is consistent with the Obama Administration’s “essential principles” for TSCA reform.

As expected, the issue of state preemption emerged as the main focus of debate during the hearing. In his testimony [PDF], Maryland Attorney General Brian Frosh called the legislation an “evisceration of state authority.” Sen. Cory Booker (D-NJ), who occupies Sen. Lautenberg’s Senate seat, called the bill’s preemption provisions “a serious problem.”

At today’s hearing, Senator Barbara Boxer (D-CA) voiced her opposition to the Udall-Vitter plan, saying in her opening statement that the bill “fails to provide the public health protections needed and is worse than current law,” and noting opposition from over 450 organizations, including Attorneys General from eight states, the Environmental Working Group, Physicians for Social Responsibility, and the United Steelworkers.

Senators Boxer and Edward Markey (D-MA), who introduced a competing plan last week, continued to argue for their proposal’s key points and critique the Udall-Vitter bill. In a press conference yesterday, the Senators said that amending the Udall-Vitter bill to incorporate elements from their proposal would make the legislation acceptable. These elements include nixing state preemption, setting tighter deadlines for EPA action, and directing EPA to regulate asbestos and persistent, bioaccumulative and toxic (PBT) chemicals.

Sen. Boxer also claimed that the proposed legislation was drafted by the American Chemistry Council (ACC), a major industry lobbying group, although Sen. Udall’s staff disputed this, saying that input was taken from the ACC along with other stakeholders, such as the environmental group Natural Resources Defense Council.

Senators Boxer and Markey introduce competing TSCA reform bill.

Today, Senators Barbara Boxer (D-CA), Ranking Member of the Senate Environment and Public Works Committee, and Edward Markey (D-MA), Ranking Member of the Subcommittee on Superfund, Waste Management, and Regulatory Oversight, introduced a new proposal to modernize the Toxic Substances Control Act (TSCA). The “Alan Reinstein and Trevor Schaefer Toxic Chemical Protection Act” is named after Alan Reinstein, who died in 2006 of asbestos exposure-caused mesothelioma, and Trevor Schaefer, a brain cancer survivor and advocate for safety from environmental and chemical exposures. The bill aims to strengthen the standard EPA uses to assess chemical safety; increase the speed at which the agency conducts chemical assessments; and preserve the states’ ability to regulate chemicals at the state level and co-enforce federal law.

The introduction comes just two days after the debut of the industry-supported “Frank R. Lautenberg Chemical Safety for the 21st Century Act” by Senators Tom Udall (D-NM) and David Vitter (R-LA). In a statement responding to the Udall-Vitter proposal, Sen. Boxer said, “It is clear that in its present form, this bill fails to provide the protections needed and is worse than current law.”

The text of the Boxer-Markey bill has not yet been made publicly available, but a one-page summary [PDF] has been released, and the Environmental Working Group (EWG) has also posted a comparison between the Boxer-Markey and Udall-Vitter proposal. Highlights of the Boxer-Markey plan include:

  • Stronger standard for chemical safety: The bill will adopt a heightened safety standard for EPA’s chemical safety assessment, using the “reasonable certainty of no harm” threshold currently used in reviewing pesticide safety.
  • Expedited reviews for asbestos and persistent, bioaccumulative toxic chemicals: The bill will provide for an “expedited safety review” process to speed safety assessments (and subsequent regulations) for asbestos and the class of chemicals known as persistent, bioaccumulative and toxic (PBT).
  • State preemption and co-enforcement: States would not be preempted from enacting and enforcing their own restrictions on chemicals, or from co-enforcing federal requirements.
  • Risk of chemical spills: In prioritizing chemicals for assessment, EPA would be required to consider the risk of unplanned releases to the environment, like last year’s spill of the coal cleaning chemical MCHM in West Virginia’s Elk River.
  • Industry user fees: According to the EWG, Boxer-Markey will require industry “to provide the funding necessary to do timely safety reviews.”

Along with the Boxer-Markey proposal, the early response to the Udall-Vitter plan from other stakeholders has coalesced around a few main points, particularly insistence on preserving state authority and co-enforcement. In addition, Senator Tom Carper (D-DE), a co-sponsor of the Udall-Vitter bill, is advocating [PDF] for the public review of EPA’s designations of chemicals as “low priority.” Environmental and public health groups have sharply criticized the bipartisan proposal, but some are still optimistic that further negotiations could resolve the bill’s problems.

Senators unveil new bipartisan TSCA reform bill.

After much anticipation, the long-awaited new version of the Senate bipartisan bill to modernize the Toxic Substances Control Act (TSCA) was released today by Senators Tom Udall (D-NM) and David Vitter (R-LA). The proposal, called the “Frank R. Lautenberg Chemical Safety for the 21st Century Act,” is a new version of the “Chemical Safety Improvement Act” (CSIA) introduced by Sens. Frank Lautenberg (D-NJ) and Vitter in May 2013.

Like the CSIA, today’s proposal sets a new safety standard of “no unreasonable risk of harm to health or the environment” from exposure of the chemical under the conditions of use, including to potentially susceptible populations – such as infants, pregnant women, the elderly, or workers – as identified by EPA. The bill authorizes EPA to obtain new information on chemicals throughout the safety evaluation process under TSCA § 4 and establishes a “tiered screening and testing” system. Under the bill’s safety evaluation process, articles can only be prohibited or “otherwise restrict[ed]” if EPA has “evidence of significant exposure to the chemical substance from such article.” To reduce duplicative testing, the Udall-Vitter proposal provides for a framework for the “fair and equitable reimbursement” of data development costs.

EPA would be required to establish a risk-based prioritization scheme of high- and low-priority substances within one year of enactment, and an interim list of 10 substances in each category. Additional prioritization milestones for three and five years after enactment are also specified. The bill provides various criteria for prioritization, including recommendations from states, hazard and exposure potential, etc. States would be able to seek judicial review of low-priority designations, and such designations “must be based on information sufficient to establish that the substance is likely to meet the safety standard.” The prioritization scheme also provides for an “additional priority” allowing companies to request the EPA to fast-track safety evaluations and determinations, which would be fully funded by user fees.

Significantly, the Udall-Vitter bill directs EPA to set up a user fee program to fund 25% of program costs including safety evaluations and regulations, up to $18 million. This fee authority would be collected and made available “only to the extent and in the amounts provided in advance” as appropriated by Congress.

The new proposal takes a somewhat different tack on state preemption than the CSIA. The enforcement of existing state statutes and administrative actions on specific substances will not be preempted until the effective date of the applicable federal action, e.g., an EPA Significant New Use Rule, test order, or safety determination. However, new state statutes or administrative actions prohibiting or restricting substances designated as high-priority would be preempted as soon as EPA commences a safety assessment. Like the original CSIA, the new bill provides for a system in which states may apply for a waiver from preemption, subject to various conditions. EPA’s waiver decisions would be subject to notice and comment and subject to judicial review.

In addition, the bill provides for an interagency “Sustainable Chemistry Program” to coordinate and support sustainable chemistry-related research, development, commercialization, education, etc., although “sustainable chemistry” is not defined.

Sen. Lautenberg, who passed away in June 2013, was a long-time champion of public health and environmental protection, including TSCA reform efforts. The invocation of Sen. Lautenberg’s legacy, however, may “inflame divisions” between Senator Barbara Boxer (D-CA) and other Democrats. Sen. Boxer vocally opposed the CSIA, criticizing that proposal’s preemption of state regulations. The California Attorney General has already written a sharp critique of the Udall-Vitter proposal, calling it an “unprecedented and unnecessary evisceration of state regulatory authority.”

Environmental and other advocacy groups, including the Environmental Working Group and Safer Chemicals, Healthy Families coalition, are already publicly opposing the new bill and calling for changes. Chemical industry groups, including the American Chemistry Council (ACC) and the Society of Chemical Manufacturers and Affiliates, are lauding it and pushing for its passage. The New York Times quoted Richard Denison, senior scientist at the Environmental Defense Fund, calling the bill “a solid compromise that would be much more protective of public health.” In the same article, ACC president Cal Dooley predicts the legislation could garner 70 votes on the Senate floor.

Sen. Udall also said that he is working with Rep. John Shimkus (R-IL) on related legislation in the House.

The Senate Environment and Public Works Committee is reportedly holding a hearing on TSCA on March 18. The late Sen. Lautenberg’s widow, Bonnie Englebardt Lautenberg, is expected to speak in favor of the Udall-Vitter bill. The draft legislation is available here, and a fact sheet prepared by Sens. Udall and Vitter is available here.

Senior House Democrat on board with Republican proposal to reform TSCA.

The passage of legislation to modernize the Toxic Substances Control Act (TSCA) looks a little more likely as a senior House Democrat has voiced positive feedback on the proposal offered by Rep. John Shimkus (R-IL), the head of the Subcommittee on Environment and the Economy.

According to Chemical Watch, Rep. Gene Green (D-TX), also a member of the Subcommittee, said that Rep. Shimkus’ more limited proposal to reform TSCA “works.” Rep. Green emphasized the need to “correct some of the things that are so outdated in TSCA,” as well as incorporating suggestions from Democrats. Rep. Green, whose district is home to several petrochemical companies, described TSCA reform as a “major issue,” and said he was “hopeful” that the issues that plagued the last attempt to modernize TSCA will not recur. As for state preemption, the main sticking point in last year’s negotiations, Rep. Green supported crafting legislation with bipartisan support as a first step before addressing preemption.

Chemical Watch also reported that Rep. Shimkus’ is currently “not committed to any timeline” for introducing legislation.

House Republicans planning “more limited” TSCA reform proposal.

Chemical Watch reports that Rep. John Shimkus (R-IL), head of the House Subcommittee on Environment and the Economy, is planning “a more limited reform measure” to modernize the Toxic Substances Control Act (TSCA) compared to the Chemicals in Commerce Act (CICA) draft that he first introduced last year. Attempts to negotiate a compromise on that legislation stalled when Republicans and Democrats could not agree on revisions and counter-proposals from either side.

Rep. Shimkus’ strategy is to offer Democrats the chance to add amendments in exchange for committing to support the legislation. However, Rep. Shimkus would not reveal what the limited scope of his proposal would target. He did cite Rep. Frank Pallone’s (D-NJ) expression of interest in working on TSCA reform as “a pretty positive sign.”

In terms of timing, Rep. Shimkus said he would like to move the bill “sooner than later, and have it off the floor before the August break.”

Rep. Shimkus also expressed hope that the more limited House proposal, if approved, could be resolved in conference committee with the more expansive TSCA reform legislation expected from the Senate side.

An early look at TSCA reform's prospects in the 114th Congress.

As the 114th Congress begins, legislators in both houses are expected to continue trying to reform the outdated Toxic Substances Control Act (TSCA), although which specific proposals and policies will be pursued remains to be seen.

According to E&E Daily, Sen. Tom Udall (D-NM) says he’s already rallying support for a new version of the Chemical Safety Improvement Act (CSIA), a bipartisan bill originally developed and introduced by Sen. David Vitter (R-LA) and the late Sen. Frank Lautenberg (D-NJ) in May 2013. Although Sen. Udall lost his seat in the Senate Environment and Public Works Committee, he is still seen by some advocates as “uniquely positioned to garner the support of more lawmakers.” Moreover, efforts at bipartisan collaboration may fare better under new Committee Chair Sen. James Inhofe (R-OK), who is known to have a collegial relationship with Sen. Barbara Boxer (D-CA), the former Chair and current Ranking Member of the Committee. Last year’s TSCA negotiations in the Senate ended with acrimonious disagreements between Sens. Boxer and Vitter. In discussing his agenda for the new Congress, Sen. Inhofe described the CSIA as a “good starting point” and “a high priority” for the Committee. Among the Democrats, a Committee aide said that Sen. Boxer’s support is predicated on the bill being “stronger than current law.” Sen. Udall said he is still trying to resolve Sen. Boxer’s concerns

On the House side, Rep. John Shimkus (R-IL) said in a statement that he is “hopeful” about attracting the bipartisan support needed to pass chemical reform. Rep. Shimkus, returning as head of the House Energy and Commerce Committee’s Subcommittee on Environment and the Economy, tabled his Chemicals in Commerce Act (CICA) draft bill after failing to win buy-in among Democrats. Rep. Frank Pallone (D-NJ), the new Ranking Member of the Energy and Commerce Committee, has expressed “serious concerns” about CICA, a sentiment echoed by other key Democrats. In addition, at a committee hearing last year, Jim Jones, the EPA Assistant Administrator for Chemical Safety and Pollution Prevention, said that “some in the administration would have some problems” with the draft bill if it advanced, which has been interpreted as an implied veto threat. Nevertheless, whether Rep. Shimkus pursues a similar approach as last year or a more targeted one, at least some in the chemical industry are hopeful that this Congress can pass TSCA reform. Bill Allmond, vice president of government affairs at Society of Chemical Manufacturers and Affiliates (SOCMA), said he is optimistic that Rep. Pallone can encourage his Democrats “to be more open-minded than in the last Congress, on TSCA reform, specifically.”

Chemical industry sees improved prospects for passing TSCA modernization in new Congress.

In the wake of last week’s Republican takeover of Congress, the chemical industry is optimistic that Congress will be able to quickly pass legislation updating the Toxic Substances Control Act (TSCA). Cal Dooley, the president of the American Chemistry Council (ACC), told journalists yesterday that the legislation proposed by Senators David Vitter (R-LA) and Tom Udall (D-NM) would “see committee action relatively soon in the congressional session,” since Sen. Barbara Boxer (D-CA), who opposed the bipartisan Chemical Safety Improvement Act (CSIA), will be replaced as chair of the Senate Environment and Public Works Committee by Sen. Jim Inhofe (R-OK).

Dooley also said he expected further developments in the House Energy and Commerce Committee, where Rep. John Shimkus (R-IL) has already introduced and held hearings on his proposed Chemicals in Commerce Act (CICA).

Although it remains unclear if enough Senate Democrats will support the CSIA, or if President Obama would back a law that preempts state restrictions, Dooley predicted that TSCA reform would pass both the House and Senate and be signed into law next year.